Naresh and ors. Vs. State of M.P. - Court Judgment

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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
			'authreffered' => '',
			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
			'citingcases' => '',
			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2005-11-25',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'naresh-ors-vs-state-m-p',
	'args' => array(
		(int) 0 => '510451',
		(int) 1 => 'naresh-ors-vs-state-m-p'
	)
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
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		'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
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		'respondent' => 'State of M.P.',
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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
			'authreffered' => '',
			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
			'citingcases' => '',
			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2005-11-25',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'naresh-ors-vs-state-m-p',
	'args' => array(
		(int) 0 => '510451',
		(int) 1 => 'naresh-ors-vs-state-m-p'
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
			'authreffered' => '',
			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
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			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
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			'decidedon' => '2005-11-25',
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			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'naresh-ors-vs-state-m-p',
	'args' => array(
		(int) 0 => '510451',
		(int) 1 => 'naresh-ors-vs-state-m-p'
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
			'authreffered' => '',
			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
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			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
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			'decidedon' => '2005-11-25',
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			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
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	'casename_url' => 'naresh-ors-vs-state-m-p',
	'args' => array(
		(int) 0 => '510451',
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
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			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
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			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
			'citingcases' => '',
			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2005-11-25',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'naresh-ors-vs-state-m-p',
	'args' => array(
		(int) 0 => '510451',
		(int) 1 => 'naresh-ors-vs-state-m-p'
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
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		'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
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	(int) 0 => '<p>A.K. Gohil, J.',
	(int) 1 => '<p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.',
	(int) 2 => '<p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.',
	(int) 3 => '<p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.',
	(int) 4 => '<p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.',
	(int) 5 => '<p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.',
	(int) 6 => '<p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.',
	(int) 7 => '<p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.',
	(int) 8 => '<p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.',
	(int) 9 => '<p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.',
	(int) 10 => '<p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.',
	(int) 11 => '<p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.',
	(int) 12 => '<p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:',
	(int) 13 => '<p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.',
	(int) 14 => '<p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.',
	(int) 15 => '<p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.',
	(int) 16 => '<p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.',
	(int) 17 => '<p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.',
	(int) 18 => '<p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.',
	(int) 19 => '<p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:',
	(int) 20 => '<p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.',
	(int) 21 => '<p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .',
	(int) 22 => '<p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.',
	(int) 23 => '<p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.',
	(int) 24 => '<p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:',
	(int) 25 => '<p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.',
	(int) 26 => '<p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:',
	(int) 27 => '<p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.',
	(int) 28 => '<p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.',
	(int) 29 => '<p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.',
	(int) 30 => '<p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.',
	(int) 31 => '<p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.',
	(int) 32 => '<p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p>',
	(int) 33 => '<p>'
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A.K. Gohil, J.

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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
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		'Judgement' => array(
			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
			'authreffered' => '',
			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
			'citingcases' => '',
			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2005-11-25',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'naresh-ors-vs-state-m-p',
	'args' => array(
		(int) 0 => '510451',
		(int) 1 => 'naresh-ors-vs-state-m-p'
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
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		'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
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		'respondent' => 'State of M.P.',
		'sub' => 'Criminal',
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		'circuit' => null
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	(int) 0 => '<p>A.K. Gohil, J.',
	(int) 1 => '<p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.',
	(int) 2 => '<p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.',
	(int) 3 => '<p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.',
	(int) 4 => '<p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.',
	(int) 5 => '<p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.',
	(int) 6 => '<p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.',
	(int) 7 => '<p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.',
	(int) 8 => '<p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.',
	(int) 9 => '<p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.',
	(int) 10 => '<p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.',
	(int) 11 => '<p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.',
	(int) 12 => '<p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:',
	(int) 13 => '<p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.',
	(int) 14 => '<p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.',
	(int) 15 => '<p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.',
	(int) 16 => '<p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.',
	(int) 17 => '<p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.',
	(int) 18 => '<p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.',
	(int) 19 => '<p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:',
	(int) 20 => '<p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.',
	(int) 21 => '<p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .',
	(int) 22 => '<p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.',
	(int) 23 => '<p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.',
	(int) 24 => '<p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:',
	(int) 25 => '<p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.',
	(int) 26 => '<p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:',
	(int) 27 => '<p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.',
	(int) 28 => '<p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.',
	(int) 29 => '<p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.',
	(int) 30 => '<p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.',
	(int) 31 => '<p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.',
	(int) 32 => '<p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p>',
	(int) 33 => '<p>'
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1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.

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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
			'authreffered' => '',
			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
			'citingcases' => '',
			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2005-11-25',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
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	'casename_url' => 'naresh-ors-vs-state-m-p',
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		(int) 0 => '510451',
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
		'ratiodecidendi' => '',
		'respondent' => 'State of M.P.',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'Harikishan and State of Haryana v. Sukhbir Singh<br>'
$content = array(
	(int) 0 => '<p>A.K. Gohil, J.',
	(int) 1 => '<p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.',
	(int) 2 => '<p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.',
	(int) 3 => '<p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.',
	(int) 4 => '<p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.',
	(int) 5 => '<p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.',
	(int) 6 => '<p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.',
	(int) 7 => '<p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.',
	(int) 8 => '<p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.',
	(int) 9 => '<p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.',
	(int) 10 => '<p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.',
	(int) 11 => '<p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.',
	(int) 12 => '<p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:',
	(int) 13 => '<p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.',
	(int) 14 => '<p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.',
	(int) 15 => '<p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.',
	(int) 16 => '<p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.',
	(int) 17 => '<p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.',
	(int) 18 => '<p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.',
	(int) 19 => '<p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:',
	(int) 20 => '<p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.',
	(int) 21 => '<p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .',
	(int) 22 => '<p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.',
	(int) 23 => '<p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.',
	(int) 24 => '<p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:',
	(int) 25 => '<p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.',
	(int) 26 => '<p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:',
	(int) 27 => '<p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.',
	(int) 28 => '<p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.',
	(int) 29 => '<p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.',
	(int) 30 => '<p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.',
	(int) 31 => '<p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.',
	(int) 32 => '<p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p>',
	(int) 33 => '<p>'
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2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.

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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
			'authreffered' => '',
			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
			'citingcases' => '',
			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2005-11-25',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
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	'casename_url' => 'naresh-ors-vs-state-m-p',
	'args' => array(
		(int) 0 => '510451',
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
		'ratiodecidendi' => '',
		'respondent' => 'State of M.P.',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'Harikishan and State of Haryana v. Sukhbir Singh<br>'
$content = array(
	(int) 0 => '<p>A.K. Gohil, J.',
	(int) 1 => '<p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.',
	(int) 2 => '<p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.',
	(int) 3 => '<p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.',
	(int) 4 => '<p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.',
	(int) 5 => '<p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.',
	(int) 6 => '<p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.',
	(int) 7 => '<p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.',
	(int) 8 => '<p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.',
	(int) 9 => '<p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.',
	(int) 10 => '<p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.',
	(int) 11 => '<p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.',
	(int) 12 => '<p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:',
	(int) 13 => '<p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.',
	(int) 14 => '<p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.',
	(int) 15 => '<p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.',
	(int) 16 => '<p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.',
	(int) 17 => '<p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.',
	(int) 18 => '<p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.',
	(int) 19 => '<p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:',
	(int) 20 => '<p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.',
	(int) 21 => '<p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .',
	(int) 22 => '<p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.',
	(int) 23 => '<p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.',
	(int) 24 => '<p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:',
	(int) 25 => '<p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.',
	(int) 26 => '<p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:',
	(int) 27 => '<p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.',
	(int) 28 => '<p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.',
	(int) 29 => '<p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.',
	(int) 30 => '<p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.',
	(int) 31 => '<p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.',
	(int) 32 => '<p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p>',
	(int) 33 => '<p>'
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3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.

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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
			'authreffered' => '',
			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
			'citingcases' => '',
			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2005-11-25',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 'naresh-ors-vs-state-m-p',
	'args' => array(
		(int) 0 => '510451',
		(int) 1 => 'naresh-ors-vs-state-m-p'
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
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		'respondent' => 'State of M.P.',
		'sub' => 'Criminal',
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		'circuit' => null
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$content = array(
	(int) 0 => '<p>A.K. Gohil, J.',
	(int) 1 => '<p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.',
	(int) 2 => '<p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.',
	(int) 3 => '<p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.',
	(int) 4 => '<p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.',
	(int) 5 => '<p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.',
	(int) 6 => '<p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.',
	(int) 7 => '<p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.',
	(int) 8 => '<p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.',
	(int) 9 => '<p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.',
	(int) 10 => '<p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.',
	(int) 11 => '<p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.',
	(int) 12 => '<p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:',
	(int) 13 => '<p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.',
	(int) 14 => '<p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.',
	(int) 15 => '<p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.',
	(int) 16 => '<p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.',
	(int) 17 => '<p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.',
	(int) 18 => '<p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.',
	(int) 19 => '<p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:',
	(int) 20 => '<p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.',
	(int) 21 => '<p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .',
	(int) 22 => '<p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.',
	(int) 23 => '<p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.',
	(int) 24 => '<p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:',
	(int) 25 => '<p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.',
	(int) 26 => '<p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:',
	(int) 27 => '<p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.',
	(int) 28 => '<p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.',
	(int) 29 => '<p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.',
	(int) 30 => '<p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.',
	(int) 31 => '<p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.',
	(int) 32 => '<p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p>',
	(int) 33 => '<p>'
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4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.

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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
			'authreffered' => '',
			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
			'citingcases' => '',
			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2005-11-25',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 'naresh-ors-vs-state-m-p',
	'args' => array(
		(int) 0 => '510451',
		(int) 1 => 'naresh-ors-vs-state-m-p'
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
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		'respondent' => 'State of M.P.',
		'sub' => 'Criminal',
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		'circuit' => null
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$caseref = 'Harikishan and State of Haryana v. Sukhbir Singh<br>'
$content = array(
	(int) 0 => '<p>A.K. Gohil, J.',
	(int) 1 => '<p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.',
	(int) 2 => '<p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.',
	(int) 3 => '<p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.',
	(int) 4 => '<p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.',
	(int) 5 => '<p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.',
	(int) 6 => '<p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.',
	(int) 7 => '<p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.',
	(int) 8 => '<p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.',
	(int) 9 => '<p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.',
	(int) 10 => '<p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.',
	(int) 11 => '<p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.',
	(int) 12 => '<p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:',
	(int) 13 => '<p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.',
	(int) 14 => '<p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.',
	(int) 15 => '<p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.',
	(int) 16 => '<p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.',
	(int) 17 => '<p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.',
	(int) 18 => '<p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.',
	(int) 19 => '<p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:',
	(int) 20 => '<p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.',
	(int) 21 => '<p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .',
	(int) 22 => '<p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.',
	(int) 23 => '<p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.',
	(int) 24 => '<p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:',
	(int) 25 => '<p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.',
	(int) 26 => '<p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:',
	(int) 27 => '<p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.',
	(int) 28 => '<p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.',
	(int) 29 => '<p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.',
	(int) 30 => '<p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.',
	(int) 31 => '<p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.',
	(int) 32 => '<p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p>',
	(int) 33 => '<p>'
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5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.

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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
			'authreffered' => '',
			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
			'citingcases' => '',
			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2005-11-25',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'naresh-ors-vs-state-m-p',
	'args' => array(
		(int) 0 => '510451',
		(int) 1 => 'naresh-ors-vs-state-m-p'
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
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		'respondent' => 'State of M.P.',
		'sub' => 'Criminal',
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		'circuit' => null
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$content = array(
	(int) 0 => '<p>A.K. Gohil, J.',
	(int) 1 => '<p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.',
	(int) 2 => '<p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.',
	(int) 3 => '<p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.',
	(int) 4 => '<p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.',
	(int) 5 => '<p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.',
	(int) 6 => '<p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.',
	(int) 7 => '<p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.',
	(int) 8 => '<p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.',
	(int) 9 => '<p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.',
	(int) 10 => '<p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.',
	(int) 11 => '<p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.',
	(int) 12 => '<p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:',
	(int) 13 => '<p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.',
	(int) 14 => '<p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.',
	(int) 15 => '<p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.',
	(int) 16 => '<p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.',
	(int) 17 => '<p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.',
	(int) 18 => '<p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.',
	(int) 19 => '<p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:',
	(int) 20 => '<p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.',
	(int) 21 => '<p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .',
	(int) 22 => '<p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.',
	(int) 23 => '<p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.',
	(int) 24 => '<p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:',
	(int) 25 => '<p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.',
	(int) 26 => '<p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:',
	(int) 27 => '<p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.',
	(int) 28 => '<p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.',
	(int) 29 => '<p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.',
	(int) 30 => '<p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.',
	(int) 31 => '<p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.',
	(int) 32 => '<p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p>',
	(int) 33 => '<p>'
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6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.

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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
			'authreffered' => '',
			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
			'citingcases' => '',
			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2005-11-25',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'naresh-ors-vs-state-m-p',
	'args' => array(
		(int) 0 => '510451',
		(int) 1 => 'naresh-ors-vs-state-m-p'
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
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		'respondent' => 'State of M.P.',
		'sub' => 'Criminal',
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		'circuit' => null
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$content = array(
	(int) 0 => '<p>A.K. Gohil, J.',
	(int) 1 => '<p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.',
	(int) 2 => '<p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.',
	(int) 3 => '<p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.',
	(int) 4 => '<p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.',
	(int) 5 => '<p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.',
	(int) 6 => '<p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.',
	(int) 7 => '<p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.',
	(int) 8 => '<p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.',
	(int) 9 => '<p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.',
	(int) 10 => '<p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.',
	(int) 11 => '<p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.',
	(int) 12 => '<p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:',
	(int) 13 => '<p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.',
	(int) 14 => '<p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.',
	(int) 15 => '<p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.',
	(int) 16 => '<p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.',
	(int) 17 => '<p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.',
	(int) 18 => '<p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.',
	(int) 19 => '<p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:',
	(int) 20 => '<p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.',
	(int) 21 => '<p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .',
	(int) 22 => '<p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.',
	(int) 23 => '<p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.',
	(int) 24 => '<p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:',
	(int) 25 => '<p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.',
	(int) 26 => '<p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:',
	(int) 27 => '<p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.',
	(int) 28 => '<p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.',
	(int) 29 => '<p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.',
	(int) 30 => '<p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.',
	(int) 31 => '<p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.',
	(int) 32 => '<p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p>',
	(int) 33 => '<p>'
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7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.

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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
			'authreffered' => '',
			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
			'citingcases' => '',
			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2005-11-25',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'naresh-ors-vs-state-m-p',
	'args' => array(
		(int) 0 => '510451',
		(int) 1 => 'naresh-ors-vs-state-m-p'
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
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		'respondent' => 'State of M.P.',
		'sub' => 'Criminal',
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		'circuit' => null
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$content = array(
	(int) 0 => '<p>A.K. Gohil, J.',
	(int) 1 => '<p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.',
	(int) 2 => '<p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.',
	(int) 3 => '<p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.',
	(int) 4 => '<p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.',
	(int) 5 => '<p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.',
	(int) 6 => '<p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.',
	(int) 7 => '<p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.',
	(int) 8 => '<p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.',
	(int) 9 => '<p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.',
	(int) 10 => '<p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.',
	(int) 11 => '<p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.',
	(int) 12 => '<p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:',
	(int) 13 => '<p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.',
	(int) 14 => '<p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.',
	(int) 15 => '<p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.',
	(int) 16 => '<p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.',
	(int) 17 => '<p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.',
	(int) 18 => '<p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.',
	(int) 19 => '<p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:',
	(int) 20 => '<p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.',
	(int) 21 => '<p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .',
	(int) 22 => '<p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.',
	(int) 23 => '<p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.',
	(int) 24 => '<p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:',
	(int) 25 => '<p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.',
	(int) 26 => '<p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:',
	(int) 27 => '<p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.',
	(int) 28 => '<p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.',
	(int) 29 => '<p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.',
	(int) 30 => '<p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.',
	(int) 31 => '<p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.',
	(int) 32 => '<p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p>',
	(int) 33 => '<p>'
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8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.

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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
			'authreffered' => '',
			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
			'citingcases' => '',
			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2005-11-25',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'naresh-ors-vs-state-m-p',
	'args' => array(
		(int) 0 => '510451',
		(int) 1 => 'naresh-ors-vs-state-m-p'
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
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		'respondent' => 'State of M.P.',
		'sub' => 'Criminal',
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		'circuit' => null
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$content = array(
	(int) 0 => '<p>A.K. Gohil, J.',
	(int) 1 => '<p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.',
	(int) 2 => '<p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.',
	(int) 3 => '<p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.',
	(int) 4 => '<p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.',
	(int) 5 => '<p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.',
	(int) 6 => '<p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.',
	(int) 7 => '<p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.',
	(int) 8 => '<p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.',
	(int) 9 => '<p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.',
	(int) 10 => '<p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.',
	(int) 11 => '<p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.',
	(int) 12 => '<p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:',
	(int) 13 => '<p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.',
	(int) 14 => '<p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.',
	(int) 15 => '<p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.',
	(int) 16 => '<p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.',
	(int) 17 => '<p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.',
	(int) 18 => '<p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.',
	(int) 19 => '<p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:',
	(int) 20 => '<p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.',
	(int) 21 => '<p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .',
	(int) 22 => '<p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.',
	(int) 23 => '<p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.',
	(int) 24 => '<p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:',
	(int) 25 => '<p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.',
	(int) 26 => '<p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:',
	(int) 27 => '<p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.',
	(int) 28 => '<p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.',
	(int) 29 => '<p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.',
	(int) 30 => '<p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.',
	(int) 31 => '<p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.',
	(int) 32 => '<p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p>',
	(int) 33 => '<p>'
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9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.

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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
			'authreffered' => '',
			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
			'citingcases' => '',
			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2005-11-25',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 'naresh-ors-vs-state-m-p',
	'args' => array(
		(int) 0 => '510451',
		(int) 1 => 'naresh-ors-vs-state-m-p'
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
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		'respondent' => 'State of M.P.',
		'sub' => 'Criminal',
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		'circuit' => null
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$caseref = 'Harikishan and State of Haryana v. Sukhbir Singh<br>'
$content = array(
	(int) 0 => '<p>A.K. Gohil, J.',
	(int) 1 => '<p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.',
	(int) 2 => '<p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.',
	(int) 3 => '<p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.',
	(int) 4 => '<p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.',
	(int) 5 => '<p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.',
	(int) 6 => '<p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.',
	(int) 7 => '<p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.',
	(int) 8 => '<p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.',
	(int) 9 => '<p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.',
	(int) 10 => '<p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.',
	(int) 11 => '<p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.',
	(int) 12 => '<p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:',
	(int) 13 => '<p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.',
	(int) 14 => '<p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.',
	(int) 15 => '<p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.',
	(int) 16 => '<p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.',
	(int) 17 => '<p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.',
	(int) 18 => '<p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.',
	(int) 19 => '<p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:',
	(int) 20 => '<p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.',
	(int) 21 => '<p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .',
	(int) 22 => '<p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.',
	(int) 23 => '<p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.',
	(int) 24 => '<p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:',
	(int) 25 => '<p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.',
	(int) 26 => '<p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:',
	(int) 27 => '<p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.',
	(int) 28 => '<p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.',
	(int) 29 => '<p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.',
	(int) 30 => '<p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.',
	(int) 31 => '<p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.',
	(int) 32 => '<p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p>',
	(int) 33 => '<p>'
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10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.

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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
			'authreffered' => '',
			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
			'citingcases' => '',
			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2005-11-25',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'naresh-ors-vs-state-m-p',
	'args' => array(
		(int) 0 => '510451',
		(int) 1 => 'naresh-ors-vs-state-m-p'
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
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		'respondent' => 'State of M.P.',
		'sub' => 'Criminal',
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		'circuit' => null
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$content = array(
	(int) 0 => '<p>A.K. Gohil, J.',
	(int) 1 => '<p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.',
	(int) 2 => '<p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.',
	(int) 3 => '<p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.',
	(int) 4 => '<p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.',
	(int) 5 => '<p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.',
	(int) 6 => '<p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.',
	(int) 7 => '<p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.',
	(int) 8 => '<p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.',
	(int) 9 => '<p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.',
	(int) 10 => '<p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.',
	(int) 11 => '<p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.',
	(int) 12 => '<p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:',
	(int) 13 => '<p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.',
	(int) 14 => '<p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.',
	(int) 15 => '<p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.',
	(int) 16 => '<p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.',
	(int) 17 => '<p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.',
	(int) 18 => '<p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.',
	(int) 19 => '<p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:',
	(int) 20 => '<p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.',
	(int) 21 => '<p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .',
	(int) 22 => '<p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.',
	(int) 23 => '<p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.',
	(int) 24 => '<p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:',
	(int) 25 => '<p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.',
	(int) 26 => '<p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:',
	(int) 27 => '<p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.',
	(int) 28 => '<p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.',
	(int) 29 => '<p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.',
	(int) 30 => '<p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.',
	(int) 31 => '<p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.',
	(int) 32 => '<p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p>',
	(int) 33 => '<p>'
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11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.

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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
			'authreffered' => '',
			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
			'citingcases' => '',
			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2005-11-25',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'naresh-ors-vs-state-m-p',
	'args' => array(
		(int) 0 => '510451',
		(int) 1 => 'naresh-ors-vs-state-m-p'
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
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		'respondent' => 'State of M.P.',
		'sub' => 'Criminal',
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		'circuit' => null
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$content = array(
	(int) 0 => '<p>A.K. Gohil, J.',
	(int) 1 => '<p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.',
	(int) 2 => '<p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.',
	(int) 3 => '<p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.',
	(int) 4 => '<p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.',
	(int) 5 => '<p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.',
	(int) 6 => '<p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.',
	(int) 7 => '<p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.',
	(int) 8 => '<p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.',
	(int) 9 => '<p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.',
	(int) 10 => '<p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.',
	(int) 11 => '<p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.',
	(int) 12 => '<p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:',
	(int) 13 => '<p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.',
	(int) 14 => '<p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.',
	(int) 15 => '<p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.',
	(int) 16 => '<p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.',
	(int) 17 => '<p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.',
	(int) 18 => '<p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.',
	(int) 19 => '<p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:',
	(int) 20 => '<p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.',
	(int) 21 => '<p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .',
	(int) 22 => '<p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.',
	(int) 23 => '<p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.',
	(int) 24 => '<p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:',
	(int) 25 => '<p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.',
	(int) 26 => '<p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:',
	(int) 27 => '<p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.',
	(int) 28 => '<p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.',
	(int) 29 => '<p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.',
	(int) 30 => '<p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.',
	(int) 31 => '<p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.',
	(int) 32 => '<p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p>',
	(int) 33 => '<p>'
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12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:

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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
			'authreffered' => '',
			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
			'citingcases' => '',
			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2005-11-25',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 'naresh-ors-vs-state-m-p',
	'args' => array(
		(int) 0 => '510451',
		(int) 1 => 'naresh-ors-vs-state-m-p'
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
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		'respondent' => 'State of M.P.',
		'sub' => 'Criminal',
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		'circuit' => null
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$caseref = 'Harikishan and State of Haryana v. Sukhbir Singh<br>'
$content = array(
	(int) 0 => '<p>A.K. Gohil, J.',
	(int) 1 => '<p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.',
	(int) 2 => '<p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.',
	(int) 3 => '<p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.',
	(int) 4 => '<p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.',
	(int) 5 => '<p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.',
	(int) 6 => '<p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.',
	(int) 7 => '<p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.',
	(int) 8 => '<p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.',
	(int) 9 => '<p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.',
	(int) 10 => '<p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.',
	(int) 11 => '<p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.',
	(int) 12 => '<p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:',
	(int) 13 => '<p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.',
	(int) 14 => '<p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.',
	(int) 15 => '<p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.',
	(int) 16 => '<p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.',
	(int) 17 => '<p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.',
	(int) 18 => '<p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.',
	(int) 19 => '<p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:',
	(int) 20 => '<p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.',
	(int) 21 => '<p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .',
	(int) 22 => '<p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.',
	(int) 23 => '<p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.',
	(int) 24 => '<p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:',
	(int) 25 => '<p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.',
	(int) 26 => '<p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:',
	(int) 27 => '<p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.',
	(int) 28 => '<p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.',
	(int) 29 => '<p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.',
	(int) 30 => '<p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.',
	(int) 31 => '<p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.',
	(int) 32 => '<p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p>',
	(int) 33 => '<p>'
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(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.

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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
			'authreffered' => '',
			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
			'citingcases' => '',
			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2005-11-25',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 'naresh-ors-vs-state-m-p',
	'args' => array(
		(int) 0 => '510451',
		(int) 1 => 'naresh-ors-vs-state-m-p'
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
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		'respondent' => 'State of M.P.',
		'sub' => 'Criminal',
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		'circuit' => null
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$caseref = 'Harikishan and State of Haryana v. Sukhbir Singh<br>'
$content = array(
	(int) 0 => '<p>A.K. Gohil, J.',
	(int) 1 => '<p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.',
	(int) 2 => '<p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.',
	(int) 3 => '<p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.',
	(int) 4 => '<p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.',
	(int) 5 => '<p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.',
	(int) 6 => '<p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.',
	(int) 7 => '<p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.',
	(int) 8 => '<p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.',
	(int) 9 => '<p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.',
	(int) 10 => '<p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.',
	(int) 11 => '<p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.',
	(int) 12 => '<p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:',
	(int) 13 => '<p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.',
	(int) 14 => '<p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.',
	(int) 15 => '<p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.',
	(int) 16 => '<p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.',
	(int) 17 => '<p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.',
	(int) 18 => '<p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.',
	(int) 19 => '<p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:',
	(int) 20 => '<p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.',
	(int) 21 => '<p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .',
	(int) 22 => '<p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.',
	(int) 23 => '<p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.',
	(int) 24 => '<p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:',
	(int) 25 => '<p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.',
	(int) 26 => '<p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:',
	(int) 27 => '<p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.',
	(int) 28 => '<p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.',
	(int) 29 => '<p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.',
	(int) 30 => '<p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.',
	(int) 31 => '<p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.',
	(int) 32 => '<p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p>',
	(int) 33 => '<p>'
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(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.

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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
			'authreffered' => '',
			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
			'citingcases' => '',
			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2005-11-25',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 'naresh-ors-vs-state-m-p',
	'args' => array(
		(int) 0 => '510451',
		(int) 1 => 'naresh-ors-vs-state-m-p'
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
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		'respondent' => 'State of M.P.',
		'sub' => 'Criminal',
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		'circuit' => null
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$caseref = 'Harikishan and State of Haryana v. Sukhbir Singh<br>'
$content = array(
	(int) 0 => '<p>A.K. Gohil, J.',
	(int) 1 => '<p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.',
	(int) 2 => '<p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.',
	(int) 3 => '<p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.',
	(int) 4 => '<p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.',
	(int) 5 => '<p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.',
	(int) 6 => '<p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.',
	(int) 7 => '<p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.',
	(int) 8 => '<p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.',
	(int) 9 => '<p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.',
	(int) 10 => '<p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.',
	(int) 11 => '<p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.',
	(int) 12 => '<p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:',
	(int) 13 => '<p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.',
	(int) 14 => '<p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.',
	(int) 15 => '<p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.',
	(int) 16 => '<p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.',
	(int) 17 => '<p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.',
	(int) 18 => '<p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.',
	(int) 19 => '<p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:',
	(int) 20 => '<p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.',
	(int) 21 => '<p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .',
	(int) 22 => '<p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.',
	(int) 23 => '<p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.',
	(int) 24 => '<p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:',
	(int) 25 => '<p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.',
	(int) 26 => '<p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:',
	(int) 27 => '<p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.',
	(int) 28 => '<p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.',
	(int) 29 => '<p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.',
	(int) 30 => '<p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.',
	(int) 31 => '<p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.',
	(int) 32 => '<p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p>',
	(int) 33 => '<p>'
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(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.

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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
			'authreffered' => '',
			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
			'citingcases' => '',
			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2005-11-25',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 'naresh-ors-vs-state-m-p',
	'args' => array(
		(int) 0 => '510451',
		(int) 1 => 'naresh-ors-vs-state-m-p'
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
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		'respondent' => 'State of M.P.',
		'sub' => 'Criminal',
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		'circuit' => null
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$caseref = 'Harikishan and State of Haryana v. Sukhbir Singh<br>'
$content = array(
	(int) 0 => '<p>A.K. Gohil, J.',
	(int) 1 => '<p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.',
	(int) 2 => '<p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.',
	(int) 3 => '<p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.',
	(int) 4 => '<p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.',
	(int) 5 => '<p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.',
	(int) 6 => '<p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.',
	(int) 7 => '<p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.',
	(int) 8 => '<p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.',
	(int) 9 => '<p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.',
	(int) 10 => '<p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.',
	(int) 11 => '<p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.',
	(int) 12 => '<p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:',
	(int) 13 => '<p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.',
	(int) 14 => '<p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.',
	(int) 15 => '<p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.',
	(int) 16 => '<p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.',
	(int) 17 => '<p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.',
	(int) 18 => '<p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.',
	(int) 19 => '<p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:',
	(int) 20 => '<p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.',
	(int) 21 => '<p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .',
	(int) 22 => '<p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.',
	(int) 23 => '<p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.',
	(int) 24 => '<p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:',
	(int) 25 => '<p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.',
	(int) 26 => '<p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:',
	(int) 27 => '<p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.',
	(int) 28 => '<p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.',
	(int) 29 => '<p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.',
	(int) 30 => '<p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.',
	(int) 31 => '<p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.',
	(int) 32 => '<p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p>',
	(int) 33 => '<p>'
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(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.

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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
			'authreffered' => '',
			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
			'citingcases' => '',
			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2005-11-25',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 'naresh-ors-vs-state-m-p',
	'args' => array(
		(int) 0 => '510451',
		(int) 1 => 'naresh-ors-vs-state-m-p'
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
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		'respondent' => 'State of M.P.',
		'sub' => 'Criminal',
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		'circuit' => null
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$caseref = 'Harikishan and State of Haryana v. Sukhbir Singh<br>'
$content = array(
	(int) 0 => '<p>A.K. Gohil, J.',
	(int) 1 => '<p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.',
	(int) 2 => '<p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.',
	(int) 3 => '<p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.',
	(int) 4 => '<p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.',
	(int) 5 => '<p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.',
	(int) 6 => '<p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.',
	(int) 7 => '<p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.',
	(int) 8 => '<p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.',
	(int) 9 => '<p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.',
	(int) 10 => '<p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.',
	(int) 11 => '<p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.',
	(int) 12 => '<p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:',
	(int) 13 => '<p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.',
	(int) 14 => '<p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.',
	(int) 15 => '<p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.',
	(int) 16 => '<p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.',
	(int) 17 => '<p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.',
	(int) 18 => '<p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.',
	(int) 19 => '<p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:',
	(int) 20 => '<p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.',
	(int) 21 => '<p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .',
	(int) 22 => '<p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.',
	(int) 23 => '<p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.',
	(int) 24 => '<p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:',
	(int) 25 => '<p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.',
	(int) 26 => '<p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:',
	(int) 27 => '<p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.',
	(int) 28 => '<p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.',
	(int) 29 => '<p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.',
	(int) 30 => '<p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.',
	(int) 31 => '<p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.',
	(int) 32 => '<p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p>',
	(int) 33 => '<p>'
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In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.

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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
			'authreffered' => '',
			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
			'citingcases' => '',
			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2005-11-25',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 'naresh-ors-vs-state-m-p',
	'args' => array(
		(int) 0 => '510451',
		(int) 1 => 'naresh-ors-vs-state-m-p'
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
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		'respondent' => 'State of M.P.',
		'sub' => 'Criminal',
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		'circuit' => null
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$caseref = 'Harikishan and State of Haryana v. Sukhbir Singh<br>'
$content = array(
	(int) 0 => '<p>A.K. Gohil, J.',
	(int) 1 => '<p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.',
	(int) 2 => '<p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.',
	(int) 3 => '<p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.',
	(int) 4 => '<p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.',
	(int) 5 => '<p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.',
	(int) 6 => '<p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.',
	(int) 7 => '<p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.',
	(int) 8 => '<p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.',
	(int) 9 => '<p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.',
	(int) 10 => '<p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.',
	(int) 11 => '<p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.',
	(int) 12 => '<p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:',
	(int) 13 => '<p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.',
	(int) 14 => '<p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.',
	(int) 15 => '<p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.',
	(int) 16 => '<p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.',
	(int) 17 => '<p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.',
	(int) 18 => '<p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.',
	(int) 19 => '<p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:',
	(int) 20 => '<p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.',
	(int) 21 => '<p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .',
	(int) 22 => '<p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.',
	(int) 23 => '<p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.',
	(int) 24 => '<p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:',
	(int) 25 => '<p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.',
	(int) 26 => '<p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:',
	(int) 27 => '<p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.',
	(int) 28 => '<p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.',
	(int) 29 => '<p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.',
	(int) 30 => '<p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.',
	(int) 31 => '<p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.',
	(int) 32 => '<p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p>',
	(int) 33 => '<p>'
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13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.

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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
			'authreffered' => '',
			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
			'citingcases' => '',
			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2005-11-25',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'naresh-ors-vs-state-m-p',
	'args' => array(
		(int) 0 => '510451',
		(int) 1 => 'naresh-ors-vs-state-m-p'
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
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		'respondent' => 'State of M.P.',
		'sub' => 'Criminal',
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		'circuit' => null
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$content = array(
	(int) 0 => '<p>A.K. Gohil, J.',
	(int) 1 => '<p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.',
	(int) 2 => '<p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.',
	(int) 3 => '<p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.',
	(int) 4 => '<p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.',
	(int) 5 => '<p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.',
	(int) 6 => '<p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.',
	(int) 7 => '<p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.',
	(int) 8 => '<p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.',
	(int) 9 => '<p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.',
	(int) 10 => '<p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.',
	(int) 11 => '<p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.',
	(int) 12 => '<p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:',
	(int) 13 => '<p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.',
	(int) 14 => '<p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.',
	(int) 15 => '<p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.',
	(int) 16 => '<p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.',
	(int) 17 => '<p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.',
	(int) 18 => '<p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.',
	(int) 19 => '<p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:',
	(int) 20 => '<p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.',
	(int) 21 => '<p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .',
	(int) 22 => '<p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.',
	(int) 23 => '<p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.',
	(int) 24 => '<p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:',
	(int) 25 => '<p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.',
	(int) 26 => '<p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:',
	(int) 27 => '<p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.',
	(int) 28 => '<p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.',
	(int) 29 => '<p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.',
	(int) 30 => '<p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.',
	(int) 31 => '<p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.',
	(int) 32 => '<p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p>',
	(int) 33 => '<p>'
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14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:

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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
			'authreffered' => '',
			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
			'citingcases' => '',
			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2005-11-25',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 'naresh-ors-vs-state-m-p',
	'args' => array(
		(int) 0 => '510451',
		(int) 1 => 'naresh-ors-vs-state-m-p'
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
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		'respondent' => 'State of M.P.',
		'sub' => 'Criminal',
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		'circuit' => null
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$caseref = 'Harikishan and State of Haryana v. Sukhbir Singh<br>'
$content = array(
	(int) 0 => '<p>A.K. Gohil, J.',
	(int) 1 => '<p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.',
	(int) 2 => '<p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.',
	(int) 3 => '<p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.',
	(int) 4 => '<p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.',
	(int) 5 => '<p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.',
	(int) 6 => '<p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.',
	(int) 7 => '<p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.',
	(int) 8 => '<p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.',
	(int) 9 => '<p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.',
	(int) 10 => '<p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.',
	(int) 11 => '<p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.',
	(int) 12 => '<p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:',
	(int) 13 => '<p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.',
	(int) 14 => '<p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.',
	(int) 15 => '<p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.',
	(int) 16 => '<p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.',
	(int) 17 => '<p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.',
	(int) 18 => '<p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.',
	(int) 19 => '<p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:',
	(int) 20 => '<p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.',
	(int) 21 => '<p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .',
	(int) 22 => '<p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.',
	(int) 23 => '<p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.',
	(int) 24 => '<p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:',
	(int) 25 => '<p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.',
	(int) 26 => '<p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:',
	(int) 27 => '<p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.',
	(int) 28 => '<p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.',
	(int) 29 => '<p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.',
	(int) 30 => '<p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.',
	(int) 31 => '<p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.',
	(int) 32 => '<p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p>',
	(int) 33 => '<p>'
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We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.

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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
			'authreffered' => '',
			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
			'citingcases' => '',
			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2005-11-25',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'naresh-ors-vs-state-m-p',
	'args' => array(
		(int) 0 => '510451',
		(int) 1 => 'naresh-ors-vs-state-m-p'
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
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		'respondent' => 'State of M.P.',
		'sub' => 'Criminal',
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		'circuit' => null
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$content = array(
	(int) 0 => '<p>A.K. Gohil, J.',
	(int) 1 => '<p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.',
	(int) 2 => '<p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.',
	(int) 3 => '<p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.',
	(int) 4 => '<p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.',
	(int) 5 => '<p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.',
	(int) 6 => '<p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.',
	(int) 7 => '<p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.',
	(int) 8 => '<p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.',
	(int) 9 => '<p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.',
	(int) 10 => '<p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.',
	(int) 11 => '<p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.',
	(int) 12 => '<p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:',
	(int) 13 => '<p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.',
	(int) 14 => '<p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.',
	(int) 15 => '<p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.',
	(int) 16 => '<p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.',
	(int) 17 => '<p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.',
	(int) 18 => '<p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.',
	(int) 19 => '<p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:',
	(int) 20 => '<p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.',
	(int) 21 => '<p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .',
	(int) 22 => '<p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.',
	(int) 23 => '<p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.',
	(int) 24 => '<p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:',
	(int) 25 => '<p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.',
	(int) 26 => '<p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:',
	(int) 27 => '<p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.',
	(int) 28 => '<p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.',
	(int) 29 => '<p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.',
	(int) 30 => '<p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.',
	(int) 31 => '<p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.',
	(int) 32 => '<p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p>',
	(int) 33 => '<p>'
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and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .

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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
			'authreffered' => '',
			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
			'citingcases' => '',
			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2005-11-25',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'naresh-ors-vs-state-m-p',
	'args' => array(
		(int) 0 => '510451',
		(int) 1 => 'naresh-ors-vs-state-m-p'
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
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		'respondent' => 'State of M.P.',
		'sub' => 'Criminal',
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		'circuit' => null
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$content = array(
	(int) 0 => '<p>A.K. Gohil, J.',
	(int) 1 => '<p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.',
	(int) 2 => '<p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.',
	(int) 3 => '<p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.',
	(int) 4 => '<p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.',
	(int) 5 => '<p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.',
	(int) 6 => '<p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.',
	(int) 7 => '<p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.',
	(int) 8 => '<p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.',
	(int) 9 => '<p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.',
	(int) 10 => '<p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.',
	(int) 11 => '<p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.',
	(int) 12 => '<p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:',
	(int) 13 => '<p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.',
	(int) 14 => '<p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.',
	(int) 15 => '<p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.',
	(int) 16 => '<p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.',
	(int) 17 => '<p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.',
	(int) 18 => '<p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.',
	(int) 19 => '<p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:',
	(int) 20 => '<p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.',
	(int) 21 => '<p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .',
	(int) 22 => '<p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.',
	(int) 23 => '<p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.',
	(int) 24 => '<p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:',
	(int) 25 => '<p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.',
	(int) 26 => '<p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:',
	(int) 27 => '<p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.',
	(int) 28 => '<p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.',
	(int) 29 => '<p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.',
	(int) 30 => '<p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.',
	(int) 31 => '<p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.',
	(int) 32 => '<p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p>',
	(int) 33 => '<p>'
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15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.

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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
			'authreffered' => '',
			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
			'citingcases' => '',
			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2005-11-25',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 'naresh-ors-vs-state-m-p',
	'args' => array(
		(int) 0 => '510451',
		(int) 1 => 'naresh-ors-vs-state-m-p'
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
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		'respondent' => 'State of M.P.',
		'sub' => 'Criminal',
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		'circuit' => null
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$caseref = 'Harikishan and State of Haryana v. Sukhbir Singh<br>'
$content = array(
	(int) 0 => '<p>A.K. Gohil, J.',
	(int) 1 => '<p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.',
	(int) 2 => '<p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.',
	(int) 3 => '<p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.',
	(int) 4 => '<p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.',
	(int) 5 => '<p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.',
	(int) 6 => '<p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.',
	(int) 7 => '<p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.',
	(int) 8 => '<p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.',
	(int) 9 => '<p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.',
	(int) 10 => '<p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.',
	(int) 11 => '<p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.',
	(int) 12 => '<p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:',
	(int) 13 => '<p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.',
	(int) 14 => '<p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.',
	(int) 15 => '<p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.',
	(int) 16 => '<p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.',
	(int) 17 => '<p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.',
	(int) 18 => '<p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.',
	(int) 19 => '<p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:',
	(int) 20 => '<p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.',
	(int) 21 => '<p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .',
	(int) 22 => '<p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.',
	(int) 23 => '<p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.',
	(int) 24 => '<p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:',
	(int) 25 => '<p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.',
	(int) 26 => '<p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:',
	(int) 27 => '<p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.',
	(int) 28 => '<p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.',
	(int) 29 => '<p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.',
	(int) 30 => '<p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.',
	(int) 31 => '<p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.',
	(int) 32 => '<p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p>',
	(int) 33 => '<p>'
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16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.

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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
			'authreffered' => '',
			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
			'citingcases' => '',
			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2005-11-25',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 'naresh-ors-vs-state-m-p',
	'args' => array(
		(int) 0 => '510451',
		(int) 1 => 'naresh-ors-vs-state-m-p'
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
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		'respondent' => 'State of M.P.',
		'sub' => 'Criminal',
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		'circuit' => null
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$caseref = 'Harikishan and State of Haryana v. Sukhbir Singh<br>'
$content = array(
	(int) 0 => '<p>A.K. Gohil, J.',
	(int) 1 => '<p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.',
	(int) 2 => '<p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.',
	(int) 3 => '<p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.',
	(int) 4 => '<p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.',
	(int) 5 => '<p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.',
	(int) 6 => '<p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.',
	(int) 7 => '<p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.',
	(int) 8 => '<p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.',
	(int) 9 => '<p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.',
	(int) 10 => '<p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.',
	(int) 11 => '<p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.',
	(int) 12 => '<p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:',
	(int) 13 => '<p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.',
	(int) 14 => '<p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.',
	(int) 15 => '<p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.',
	(int) 16 => '<p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.',
	(int) 17 => '<p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.',
	(int) 18 => '<p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.',
	(int) 19 => '<p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:',
	(int) 20 => '<p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.',
	(int) 21 => '<p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .',
	(int) 22 => '<p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.',
	(int) 23 => '<p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.',
	(int) 24 => '<p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:',
	(int) 25 => '<p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.',
	(int) 26 => '<p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:',
	(int) 27 => '<p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.',
	(int) 28 => '<p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.',
	(int) 29 => '<p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.',
	(int) 30 => '<p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.',
	(int) 31 => '<p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.',
	(int) 32 => '<p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p>',
	(int) 33 => '<p>'
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17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:

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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
			'authreffered' => '',
			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
			'citingcases' => '',
			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2005-11-25',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 'naresh-ors-vs-state-m-p',
	'args' => array(
		(int) 0 => '510451',
		(int) 1 => 'naresh-ors-vs-state-m-p'
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
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		'respondent' => 'State of M.P.',
		'sub' => 'Criminal',
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		'circuit' => null
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$caseref = 'Harikishan and State of Haryana v. Sukhbir Singh<br>'
$content = array(
	(int) 0 => '<p>A.K. Gohil, J.',
	(int) 1 => '<p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.',
	(int) 2 => '<p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.',
	(int) 3 => '<p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.',
	(int) 4 => '<p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.',
	(int) 5 => '<p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.',
	(int) 6 => '<p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.',
	(int) 7 => '<p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.',
	(int) 8 => '<p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.',
	(int) 9 => '<p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.',
	(int) 10 => '<p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.',
	(int) 11 => '<p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.',
	(int) 12 => '<p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:',
	(int) 13 => '<p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.',
	(int) 14 => '<p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.',
	(int) 15 => '<p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.',
	(int) 16 => '<p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.',
	(int) 17 => '<p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.',
	(int) 18 => '<p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.',
	(int) 19 => '<p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:',
	(int) 20 => '<p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.',
	(int) 21 => '<p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .',
	(int) 22 => '<p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.',
	(int) 23 => '<p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.',
	(int) 24 => '<p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:',
	(int) 25 => '<p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.',
	(int) 26 => '<p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:',
	(int) 27 => '<p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.',
	(int) 28 => '<p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.',
	(int) 29 => '<p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.',
	(int) 30 => '<p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.',
	(int) 31 => '<p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.',
	(int) 32 => '<p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p>',
	(int) 33 => '<p>'
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When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.

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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
			'authreffered' => '',
			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
			'citingcases' => '',
			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2005-11-25',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'naresh-ors-vs-state-m-p',
	'args' => array(
		(int) 0 => '510451',
		(int) 1 => 'naresh-ors-vs-state-m-p'
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
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		'respondent' => 'State of M.P.',
		'sub' => 'Criminal',
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		'circuit' => null
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$content = array(
	(int) 0 => '<p>A.K. Gohil, J.',
	(int) 1 => '<p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.',
	(int) 2 => '<p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.',
	(int) 3 => '<p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.',
	(int) 4 => '<p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.',
	(int) 5 => '<p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.',
	(int) 6 => '<p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.',
	(int) 7 => '<p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.',
	(int) 8 => '<p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.',
	(int) 9 => '<p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.',
	(int) 10 => '<p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.',
	(int) 11 => '<p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.',
	(int) 12 => '<p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:',
	(int) 13 => '<p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.',
	(int) 14 => '<p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.',
	(int) 15 => '<p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.',
	(int) 16 => '<p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.',
	(int) 17 => '<p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.',
	(int) 18 => '<p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.',
	(int) 19 => '<p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:',
	(int) 20 => '<p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.',
	(int) 21 => '<p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .',
	(int) 22 => '<p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.',
	(int) 23 => '<p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.',
	(int) 24 => '<p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:',
	(int) 25 => '<p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.',
	(int) 26 => '<p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:',
	(int) 27 => '<p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.',
	(int) 28 => '<p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.',
	(int) 29 => '<p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.',
	(int) 30 => '<p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.',
	(int) 31 => '<p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.',
	(int) 32 => '<p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p>',
	(int) 33 => '<p>'
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Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:

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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
			'authreffered' => '',
			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
			'citingcases' => '',
			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2005-11-25',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 'naresh-ors-vs-state-m-p',
	'args' => array(
		(int) 0 => '510451',
		(int) 1 => 'naresh-ors-vs-state-m-p'
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
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		'respondent' => 'State of M.P.',
		'sub' => 'Criminal',
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		'circuit' => null
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$caseref = 'Harikishan and State of Haryana v. Sukhbir Singh<br>'
$content = array(
	(int) 0 => '<p>A.K. Gohil, J.',
	(int) 1 => '<p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.',
	(int) 2 => '<p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.',
	(int) 3 => '<p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.',
	(int) 4 => '<p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.',
	(int) 5 => '<p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.',
	(int) 6 => '<p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.',
	(int) 7 => '<p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.',
	(int) 8 => '<p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.',
	(int) 9 => '<p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.',
	(int) 10 => '<p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.',
	(int) 11 => '<p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.',
	(int) 12 => '<p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:',
	(int) 13 => '<p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.',
	(int) 14 => '<p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.',
	(int) 15 => '<p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.',
	(int) 16 => '<p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.',
	(int) 17 => '<p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.',
	(int) 18 => '<p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.',
	(int) 19 => '<p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:',
	(int) 20 => '<p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.',
	(int) 21 => '<p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .',
	(int) 22 => '<p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.',
	(int) 23 => '<p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.',
	(int) 24 => '<p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:',
	(int) 25 => '<p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.',
	(int) 26 => '<p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:',
	(int) 27 => '<p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.',
	(int) 28 => '<p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.',
	(int) 29 => '<p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.',
	(int) 30 => '<p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.',
	(int) 31 => '<p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.',
	(int) 32 => '<p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p>',
	(int) 33 => '<p>'
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10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.

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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
			'authreffered' => '',
			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
			'citingcases' => '',
			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2005-11-25',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'naresh-ors-vs-state-m-p',
	'args' => array(
		(int) 0 => '510451',
		(int) 1 => 'naresh-ors-vs-state-m-p'
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
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		'respondent' => 'State of M.P.',
		'sub' => 'Criminal',
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		'circuit' => null
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$content = array(
	(int) 0 => '<p>A.K. Gohil, J.',
	(int) 1 => '<p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.',
	(int) 2 => '<p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.',
	(int) 3 => '<p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.',
	(int) 4 => '<p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.',
	(int) 5 => '<p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.',
	(int) 6 => '<p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.',
	(int) 7 => '<p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.',
	(int) 8 => '<p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.',
	(int) 9 => '<p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.',
	(int) 10 => '<p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.',
	(int) 11 => '<p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.',
	(int) 12 => '<p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:',
	(int) 13 => '<p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.',
	(int) 14 => '<p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.',
	(int) 15 => '<p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.',
	(int) 16 => '<p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.',
	(int) 17 => '<p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.',
	(int) 18 => '<p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.',
	(int) 19 => '<p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:',
	(int) 20 => '<p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.',
	(int) 21 => '<p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .',
	(int) 22 => '<p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.',
	(int) 23 => '<p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.',
	(int) 24 => '<p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:',
	(int) 25 => '<p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.',
	(int) 26 => '<p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:',
	(int) 27 => '<p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.',
	(int) 28 => '<p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.',
	(int) 29 => '<p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.',
	(int) 30 => '<p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.',
	(int) 31 => '<p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.',
	(int) 32 => '<p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p>',
	(int) 33 => '<p>'
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The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.

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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
			'authreffered' => '',
			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
			'citingcases' => '',
			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2005-11-25',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'naresh-ors-vs-state-m-p',
	'args' => array(
		(int) 0 => '510451',
		(int) 1 => 'naresh-ors-vs-state-m-p'
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
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		'respondent' => 'State of M.P.',
		'sub' => 'Criminal',
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		'circuit' => null
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$content = array(
	(int) 0 => '<p>A.K. Gohil, J.',
	(int) 1 => '<p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.',
	(int) 2 => '<p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.',
	(int) 3 => '<p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.',
	(int) 4 => '<p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.',
	(int) 5 => '<p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.',
	(int) 6 => '<p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.',
	(int) 7 => '<p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.',
	(int) 8 => '<p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.',
	(int) 9 => '<p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.',
	(int) 10 => '<p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.',
	(int) 11 => '<p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.',
	(int) 12 => '<p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:',
	(int) 13 => '<p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.',
	(int) 14 => '<p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.',
	(int) 15 => '<p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.',
	(int) 16 => '<p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.',
	(int) 17 => '<p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.',
	(int) 18 => '<p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.',
	(int) 19 => '<p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:',
	(int) 20 => '<p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.',
	(int) 21 => '<p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .',
	(int) 22 => '<p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.',
	(int) 23 => '<p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.',
	(int) 24 => '<p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:',
	(int) 25 => '<p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.',
	(int) 26 => '<p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:',
	(int) 27 => '<p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.',
	(int) 28 => '<p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.',
	(int) 29 => '<p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.',
	(int) 30 => '<p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.',
	(int) 31 => '<p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.',
	(int) 32 => '<p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p>',
	(int) 33 => '<p>'
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In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.

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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
			'authreffered' => '',
			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
			'citingcases' => '',
			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2005-11-25',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'naresh-ors-vs-state-m-p',
	'args' => array(
		(int) 0 => '510451',
		(int) 1 => 'naresh-ors-vs-state-m-p'
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
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		'respondent' => 'State of M.P.',
		'sub' => 'Criminal',
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		'circuit' => null
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$content = array(
	(int) 0 => '<p>A.K. Gohil, J.',
	(int) 1 => '<p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.',
	(int) 2 => '<p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.',
	(int) 3 => '<p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.',
	(int) 4 => '<p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.',
	(int) 5 => '<p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.',
	(int) 6 => '<p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.',
	(int) 7 => '<p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.',
	(int) 8 => '<p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.',
	(int) 9 => '<p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.',
	(int) 10 => '<p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.',
	(int) 11 => '<p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.',
	(int) 12 => '<p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:',
	(int) 13 => '<p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.',
	(int) 14 => '<p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.',
	(int) 15 => '<p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.',
	(int) 16 => '<p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.',
	(int) 17 => '<p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.',
	(int) 18 => '<p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.',
	(int) 19 => '<p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:',
	(int) 20 => '<p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.',
	(int) 21 => '<p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .',
	(int) 22 => '<p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.',
	(int) 23 => '<p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.',
	(int) 24 => '<p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:',
	(int) 25 => '<p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.',
	(int) 26 => '<p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:',
	(int) 27 => '<p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.',
	(int) 28 => '<p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.',
	(int) 29 => '<p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.',
	(int) 30 => '<p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.',
	(int) 31 => '<p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.',
	(int) 32 => '<p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p>',
	(int) 33 => '<p>'
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18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.

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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
			'authreffered' => '',
			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
			'citingcases' => '',
			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2005-11-25',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'naresh-ors-vs-state-m-p',
	'args' => array(
		(int) 0 => '510451',
		(int) 1 => 'naresh-ors-vs-state-m-p'
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
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		'respondent' => 'State of M.P.',
		'sub' => 'Criminal',
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		'circuit' => null
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$content = array(
	(int) 0 => '<p>A.K. Gohil, J.',
	(int) 1 => '<p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.',
	(int) 2 => '<p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.',
	(int) 3 => '<p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.',
	(int) 4 => '<p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.',
	(int) 5 => '<p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.',
	(int) 6 => '<p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.',
	(int) 7 => '<p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.',
	(int) 8 => '<p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.',
	(int) 9 => '<p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.',
	(int) 10 => '<p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.',
	(int) 11 => '<p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.',
	(int) 12 => '<p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:',
	(int) 13 => '<p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.',
	(int) 14 => '<p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.',
	(int) 15 => '<p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.',
	(int) 16 => '<p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.',
	(int) 17 => '<p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.',
	(int) 18 => '<p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.',
	(int) 19 => '<p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:',
	(int) 20 => '<p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.',
	(int) 21 => '<p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .',
	(int) 22 => '<p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.',
	(int) 23 => '<p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.',
	(int) 24 => '<p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:',
	(int) 25 => '<p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.',
	(int) 26 => '<p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:',
	(int) 27 => '<p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.',
	(int) 28 => '<p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.',
	(int) 29 => '<p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.',
	(int) 30 => '<p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.',
	(int) 31 => '<p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.',
	(int) 32 => '<p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p>',
	(int) 33 => '<p>'
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19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.

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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
			'authreffered' => '',
			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
			'citingcases' => '',
			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2005-11-25',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
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	'casename_url' => 'naresh-ors-vs-state-m-p',
	'args' => array(
		(int) 0 => '510451',
		(int) 1 => 'naresh-ors-vs-state-m-p'
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
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		'respondent' => 'State of M.P.',
		'sub' => 'Criminal',
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		'circuit' => null
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$caseref = 'Harikishan and State of Haryana v. Sukhbir Singh<br>'
$content = array(
	(int) 0 => '<p>A.K. Gohil, J.',
	(int) 1 => '<p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.',
	(int) 2 => '<p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.',
	(int) 3 => '<p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.',
	(int) 4 => '<p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.',
	(int) 5 => '<p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.',
	(int) 6 => '<p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.',
	(int) 7 => '<p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.',
	(int) 8 => '<p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.',
	(int) 9 => '<p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.',
	(int) 10 => '<p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.',
	(int) 11 => '<p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.',
	(int) 12 => '<p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:',
	(int) 13 => '<p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.',
	(int) 14 => '<p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.',
	(int) 15 => '<p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.',
	(int) 16 => '<p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.',
	(int) 17 => '<p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.',
	(int) 18 => '<p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.',
	(int) 19 => '<p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:',
	(int) 20 => '<p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.',
	(int) 21 => '<p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .',
	(int) 22 => '<p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.',
	(int) 23 => '<p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.',
	(int) 24 => '<p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:',
	(int) 25 => '<p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.',
	(int) 26 => '<p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:',
	(int) 27 => '<p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.',
	(int) 28 => '<p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.',
	(int) 29 => '<p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.',
	(int) 30 => '<p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.',
	(int) 31 => '<p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.',
	(int) 32 => '<p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p>',
	(int) 33 => '<p>'
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Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.

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	'title_for_layout' => 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '510451',
			'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
			'appealno' => 'Criminal Appeal Nos. 440/1997',
			'appellant' => 'Naresh and ors.',
			'authreffered' => '',
			'casename' => 'Naresh and ors. Vs. State of M.P.',
			'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
			'caseanalysis' => null,
			'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
			'citingcases' => '',
			'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
			'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
			'court' => 'Madhya Pradesh',
			'court_type' => 'HC',
			'decidedon' => '2005-11-25',
			'deposition' => '',
			'favorof' => null,
			'findings' => null,
			'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
			'judgement' => '<p style="text-align: justify;">A.K. Gohil, J.</p><p style="text-align: justify;">1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p style="text-align: justify;">2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p style="text-align: justify;">3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p style="text-align: justify;">4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p style="text-align: justify;">5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p style="text-align: justify;">6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p style="text-align: justify;">7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p style="text-align: justify;">8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p style="text-align: justify;">9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p style="text-align: justify;">10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p style="text-align: justify;">11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p style="text-align: justify;">12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p style="text-align: justify;">(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p style="text-align: justify;">(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p style="text-align: justify;">(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p style="text-align: justify;">(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p style="text-align: justify;">In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p style="text-align: justify;">13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p style="text-align: justify;">14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p style="text-align: justify;">We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p style="text-align: justify;">and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p style="text-align: justify;">15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p style="text-align: justify;">16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p style="text-align: justify;">17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p style="text-align: justify;">When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p style="text-align: justify;">Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p style="text-align: justify;">10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p style="text-align: justify;">The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p style="text-align: justify;">In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p style="text-align: justify;">18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p style="text-align: justify;">19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p style="text-align: justify;">Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
			'ratiodecidendi' => '',
			'respondent' => 'State of M.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
		)
	),
	'casename_url' => 'naresh-ors-vs-state-m-p',
	'args' => array(
		(int) 0 => '510451',
		(int) 1 => 'naresh-ors-vs-state-m-p'
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$title_for_layout = 'Naresh and ors Vs State of M P - Citation 510451 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '510451',
		'acts' => '<a href="/act/51485/indian-penal-code-45-of-1860-complete-act">Indian Penal Code (IPC), 1860</a> - Sections 34, 149, 300, 302, 304, 323, 324 and 450; Code of Criminal Procedure (CrPC) , 1974 - Sections 357, 357(1) and 357(3)',
		'appealno' => 'Criminal Appeal Nos. 440/1997',
		'appellant' => 'Naresh and ors.',
		'authreffered' => '',
		'casename' => 'Naresh and ors. Vs. State of M.P.',
		'casenote' => 'Criminal - Murder - Culpable homicide - Sections 302, 323, 304 Part II and 450 of Indian Penal Code, 1860(IPC) - Appellants along with other five persons were accused of committing murder - Trial Court convicted appellant 1 to 3 under Sections 302, 323, 324 and 450, IPC while acquitted five other five accused - Hence, present appeal by appellants and also by respondent state against acquittal of five accused - Held, as per version of prosecution witnesses blow given by appellant no.1 was not such as to cause death - Further incident took place due to sudden fight - Hence, his conviction under Section 302 liable to be set aside - Conviction under Sections 323, 324 and 450 affirmed - Appellant no. 3 caused injury to deceased which was fatal to deceased - But prosecution failed to prove any preplanning of appellant no.3 to kill deceased - Hence, he be convicted under Section 304 Part II - Conviction under Sections 323, 324 and 450 of IPC affirmed - Regarding acquittal of other accused prosecution failed to prove their presence at time of incident - Hence, no interference required against acquittal order - Appeal of appellants partly allowed while of state dismissed - CONSTITUTION OF INDIA 1055.	Article 141;  [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ]  Dismissal of SLP arising from decision of High Court  Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court  Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court  Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP 
Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil,               S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226  - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs  is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal  Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)].  -  The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. Failure to do so may sometimes, cause aberration in the course of justice. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them.',
		'caseanalysis' => null,
		'casesref' => 'Harikishan and State of Haryana v. Sukhbir Singh;',
		'citingcases' => '',
		'counselplain' => 'Rajeev Jain and ;A.K. Jain, Advs. for Appellants in Cr.A. No. 440/97',
		'counseldef' => 'Rajeev Jain and ;A.K. Jain, Advs. for Respondents in Cr. A. No. 444/98, ;C.S. Dixit and ;Mukund Bhardwaj, Public Prosecutors for State',
		'court' => 'Madhya Pradesh',
		'court_type' => 'HC',
		'decidedon' => '2005-11-25',
		'deposition' => '',
		'favorof' => null,
		'findings' => null,
		'judge' => 'A.K. Gohil and ;P.K. Jaiswal, JJ.',
		'judgement' => '<p>A.K. Gohil, J.</p><p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.</p><p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.</p><p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.</p><p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.</p><p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.</p><p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.</p><p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.</p><p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.</p><p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.</p><p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.</p><p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.</p><p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:</p><p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.</p><p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.</p><p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.</p><p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.</p><p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.</p><p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.</p><p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:</p><p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.</p><p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .</p><p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.</p><p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.</p><p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:</p><p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.</p><p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:</p><p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.</p><p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.</p><p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.</p><p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.</p><p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.</p><p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2006CriLJ3372; 2006(2)MPHT235',
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		'respondent' => 'State of M.P.',
		'sub' => 'Criminal',
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		'circuit' => null
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$content = array(
	(int) 0 => '<p>A.K. Gohil, J.',
	(int) 1 => '<p>1. This judgment shall govern the disposal of both the aforesaid criminal appeals. In Criminal Appeal No. 440/97 appellants have challenged their conviction under Sections 302/34, 324/34, 323/34, 450, IPC and in Criminal Appeal No. 444/98 the appellant/State after obtaining leave of this Court has challenged the acquittal of all the five respondents under the aforesaid sections.',
	(int) 2 => '<p>2. It is not in dispute that during the pendency of Criminal Appeal No. 440/97, appellant No. 2 Buddha s/o Mulchand has expired, therefore, his appeal against conviction stood abated. Respondent No. 3 in Criminal Appeal No. 444/98 Mulchand s/o Biharilal has also expired during the pendency of the appeal, therefore, the appeal stood abated against respondent No. 3 Mulchand.',
	(int) 3 => '<p>3. As per prosecution story, the incident took place on 24-1-1994 at about 8.00 in the night. On that day, appellant Naresh picked up stones which were kept outside the house of complainant Gyarasibai and started throwing them. Gyarasibai asked him not to do so. Thereon, Naresh started abusing her. Chander had also abused. Thereafter, accused Buddha carrying farsa, Ramesh Barchi, Kalu Luhangi, Munna, Prakash, Mulla, Rajesh and Khilan carrying lathis in their hands started beating Chander with an intention to kill him. Chander ran away from the spot. All the accused persons chased him. Thereafter, in front of the door of the house of Shahzad they surrounded Chander and started beating him. Gyarasibai also came on the spot. At that time, Ramesh assaulted Chander by Barchi on his back and Naresh assaulted by farsa on his head. Chander fell down on the earth. Thereafter, he was beaten by all. When the complainant Gyarasibai tried to save Chander, Ramesh gave one 'Barchi' blow from the blunt side which caused injury in the elbow of right hand. Thereafter, another farsa blow was given to the complainant which caused injury in the finger of left hand. Thereafter, all went towards the house of the complainant and entered into her house. Complainant was also coming behind them. Ramesh gave Barchi blow to Rajju (deceased). Rajju received injury in the right rib. Ramesh gave another Barchi blow to Rajju on the right side. Accused Buddha assaulted by farsa to Rajju on his back and thereafter all had beaten him. Rajju fell down on the earth and treating him as dead, all the accused persons ran away from the spot. When they were running away, Mitthu was beaten by Prakash by lathi. Thereafter, the complainant saw that Rajju was dead. At the time of beating of Chander, Gopal, Hanif and Haricharan were also present who had seen the incident. It was the prosecution story that the incident took lace due to old enmity for taking out water from the field.',
	(int) 4 => '<p>4. FIR (Ex. P-l) was lodged by complainant Gyarasibai on the same day at about 8.45 p.m. at Police Station Kachnar. Thereafter, injured Mitthu, Chander and Gyarasibai were referred for medical examination. Their medical reports are Ex. P-2 to P- 4. X-ray of Chander was taken and X-ray report is Ex. P-5. Panchanama (Ex. P-9) of the dead body of the deceased was prepared and the dead body was sent for post mortem examination. As per the post mortem report, the cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. Spot map (Ex. P-8) was prepared. Accused persons were arrested. Weapons were seized on the basis of memorandum and after completing the investigation, charge-sheet was filed.',
	(int) 5 => '<p>5. At the trial, all the accused persons abjured their guilt. Defence of Khilan was that he was not present at the time of commission of the crime and he took the plea of alibi that he had gone for taking grass to Village Mudhra. Defence of other accused persons was that a quarrel took place between the brothers Rajju and Chander and they caused injuries to each other in which Rajju died and they have been implicated falsely. It was also stated in defence that it was Gyarasibai who killed one child of deceased Rajju about 7-8 months before, therefore, they have implicated them falsely.',
	(int) 6 => '<p>6. During trial, prosecution examined as many as eleven witnesses and three witnesses were examined in defence to prove the plea of alibi. But the Trial Court after considering the evidence on record, acquitted five respondents Kallu, Munna, Mulchand, Khilan and Prakash from the charges and convicted three appellants Ramesh, Buddha and Naresh, against which appellants have filed appeal against their conviction and the Stet has preferred appeal against the acquittal after obtaining leave.',
	(int) 7 => '<p>7. In both the appeals we have heard Shri Rajeev Jain and Shri A.K. Jain, learned Counsel for the convicted appellants and acquitted respondents and Shri C.S. Dixit and Shri Mukund Bhardwaj, learned Public Prosecutors for the State and perused the evidence on record.',
	(int) 8 => '<p>8. Shri Jain, learned Counsel for the appellants submitted that the deceased Rajju was residing at Bhopal. He had come from Bhopal a day earlier. He was not having any quarrel with the appellants. Deceased and the appellants and other accused persons are the members of one and the same family. There was no enmity between them. Complainant Gyarasibai had not seen the incident and she is not the eye-witness. There is no motive or prior enmity of the accused with the deceased. The doctor has not opined that the injuries received by the deceased were sufficient to cause the death in ordinary course of nature and the doctor has clearly stated that if the deceased would have received blood and proper treatment, then, he might have been saved. As per prosecution evidence, there is no allegation against the appellant naresh for causing any injury to the deceased and moreso, Ramesh has already suffered jail sentence of more than eleven years. Therefore, prayer is that considering the aforesaid circumstances, case of the appellants will fall only under Section 304, Part II, IPC. Since appellant Ramesh has already suffered jail sentence of more than eleven years and appellant Naresh had undergone jail sentence of one and half years and he has been convicted with the aid of Section 149, IPC, the appellants-be sentenced to the sentence already undergone and they have no objection for the enhancement of amount of fine.',
	(int) 9 => '<p>9. Learned Public Prosecutors appearing for the respondent/State supported the judgment of conviction, but challenged the judgment acquitting five respondents, and has not opposed the prayer of undergone jail sentence.',
	(int) 10 => '<p>10. Gyarasibai (P.W. 1) has stated that she has seen the incident. However, Mitthu (P.W. 4) who is the father of the deceased Rajju in his statement in Paras 1 to 10 has stated that Gyarasibai reached the spot leateron after he reached the spot. Hanif (P.W. 5) has also stated in Paras 1 and 8 of his statement that Gyarasibai was standing outside the house when the assailants were beating Rajju inside the house. Chander (P.W. 7), the injured, has also stated that he had not seen the assaults which were given to Rajju. Therefore, as per evidence of Mitthu (P.W. 4), and Hanif (P.W. 5), there was no eye-witness for the murder of Rajju. Only allegation against appellant Naresh is that he caused injury from the backside of farsa to Gyarasibai and it was Ramesh who caused Barchi injuries and Buddha caused farsa injuries to deceased Rajju. It has also come in the evidence that Ramesh also caused injury by Barchi on the back of injured Chander and Naresh has caused farsa injury to Chander.',
	(int) 11 => '<p>11. Therefore, from the aforesaid prosecution evidence it can be safely concluded that Ramesh and Buddha both had caused injuries to Rajju. Admittedly, during the pendency of this appeal, appellant No.2 Buddha has expired. Hence, now we are required to only consider the nature of injuries and the motive behind which are alleged to be caused by appellant Ramesh.',
	(int) 12 => '<p>12. Post mortem was performed by Dr. M.L. Agrawal (P.W. 10). As per post mortem (Ex. P-6) he found following injuries on the dead body of the deceased:',
	(int) 13 => '<p>(1) Penetrating (stab) wound over left side chest of size 2.5 cm x 1 cm x deep to chest in cavity 2nd space. Placed horizontally below and laterally to nipple. Spindle in shape. Margins sharp. Clotted blood present.',
	(int) 14 => '<p>(2) Penetrating (Stab) wound on right side of chest of size 2 cm x 1 cm x deep to chest cavity. Placed horizontally oblique on antero-lateral aspect of chest.',
	(int) 15 => '<p>(3) Incised wound on right side back in lumber region of size 4 cm x 2 cm x 0.5 cm. Horizontal. Margins clean cut. Clotted blood present.',
	(int) 16 => '<p>(4) Wounds similar to wound Nos. 1 and 3 present on both sides of Lungs. On the right side of lever, wound adjoining to wound No. 2 was present.',
	(int) 17 => '<p>In the opinion of the doctor, cause of death was shock due to injuries on the vital parts of the body and excessive bleeding. According to him, all the injuries were ante mortem in nature which were caused by hard and sharp object within 24 hours of the examination.',
	(int) 18 => '<p>13. In the cross-examination, doctor had admitted that injury No. 3 was simple and superficial in nature and death can not be caused due to this injury. He also opined that injuries Nos. 1 and 2 can only be caused by weapon which is sharp edged from both the sides. He has further stated that if the weapon is having only one sharp edge and the other edge is blunt then injuries Nos. 1 and 2 can not be caused from such a weapon. It is true that he has not given opinion whether injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the contrary, he has stated that on giving proper treatment in time alongwith infusion of blood, it was possible to save the deceased. He has also stated that he had not seen any lathi injury on the body of deceased Rajju.',
	(int) 19 => '<p>14. From this medical evidence, it is clear that deceased died because of causing of injuries by 'Barchi' which is a sharp edged weapon from both the sides. Learned Counsel for the appellants vehemently argued on the point that at the time of trial, neither the seized weapon was available nor it was shown to the doctor nor any information was sought from which whether injuries Nos. 1 and 2 could be caused by such a weapon. They also vehemently argued that doctor has not opined that the injuries were dangerous to cause death in the ordinary course of nature and in this regard they placed reliance on Bawa Singh v. State of Punjab : 1993CriLJ49 in which under the circumstances that injury attributed to accused was not individually sufficient to cause death, conviction of appellant was altered from Section 300 to that under Section 304, . Part II and Harish Kumar v. State (Delhi Administration) : 1993CriLJ411 wherein under the circumstances that accused alone had inflicted injuries which caused death but deceased died two days after infliction of injuries, it was held that though the injury resulted in death of deceased, it can not be conclusively said that it was sufficient to cause death and conviction of the accused was altered from Section 302 to Section 304 Part II and also on Shivappa Budhappa Kolkar v. State of Karnataka and Ors. 2005 SCG'(Cri) 93-wherein under the circumstances that appellant inflicted single blow with an axe on the head of deceased causing an incised wound on occipital region and depressed fracture on the skullbone and other accused persons inflicted blows with clubs causing a lacerated wound on outer aspect of left thigh and fracture of both the bones of left forearm, internal examination of thorax disclosed fracture on second and third ribs on right side at the anterior axillary portion, lacerated pleura, lacerated and collapsed right lung and collapsed blood in right side of thorax and no external injury corresponding to this internal injury in thorax region was found and there was not evidence of medical expert that the skull injury alone would have caused instantaneous death, it was held that internal thorax injury may be the result of beating with clubs and since the appellant was not responsible for any injury other than the skull injury, it can not be conclusively held that the skull injury was sufficient in the ordinary course of nature to cause death. On the question that whether injuries could be caused by the weapon seized and the seized weapon must be shown to the medical witness in Court, learned Counsel for the appellants placed reliance on a decision of the Apex Court in the case of Kartarey v. State of U.P. : 1976CriLJ13 , wherein it is held as under:',
	(int) 20 => '<p>We take this opportunity of emphasizing the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specially on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g., stab wounds, and the problem before the Court is whether all or any of those injuries could be caused by one or more than one weapon. It is duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may sometimes, cause aberration in the course of justice.',
	(int) 21 => '<p>and also on the decision in the case of Dinesh v. State of Haryana AIR 2002 SC 2374 wherein as seized weapons were not shown to the doctor for soliciting his opinion as to whether injuries on the body of deceased could be caused by those weapons, conviction of accused under Section 300, IPC was set aside. On the question about the opinion of the doctor that if the deceased had been administered proper treatment, he would have survived, reliance has been placed on a decision of the Apex Court in the case of Chuttan v. State of M.P. : 1994CriLJ2097 wherein considering other circumstances together with the submission of the doctor that he can not say definitely that if immediate sufficient medical aid had been provided the deceased could have been saved, conviction of the accused from Section 302 was modified to that under Section 304, Part II of IPC. On this question they also placed reliance in case of Durga Prasad v.State of Madhya Pradesh 1984 (1) Crimes 310. It has also been argued that blood group of the deceased found on the weapon seized has also not been proved by the prosecution and in this regard reliance has been placed on in case oiRaghunath v. State of Haryana : 2003CriLJ401 .',
	(int) 22 => '<p>15. It is also the allegation against appellant Ramesh that he caused 'Barchi' injury on the thigh of Chander, but Chander,(P.W. 7) has stated that Ramesh has caused injury of 'Barchi' on his back. In the dying declaration of Chander (Ex. D-7), it has been mentioned that Ramesh was not having 'Barchi' but he was having 'Ballam' in his hand. Dr. G.D. Arya (P.W. 8) in his Court statement in Paragraph 3 has admitted that article 'A' is a 'Bhala' and is not a 'Barchi'. He has also admitted that article 'A' is not a pointed weapon, but is a blunt weapon. Doctor has denied that Chander had told him that Ramesh had caused injury on his back by giving two 'Barchi' blows and one 'Barchi' blow on his left thigh and Naresh had given 'Farsa' blow on his head from the evidence of doctor Arya, it appears that prosecution has not produced firm evidence about the weapon used in the commission of crime. So far as the question of causing injury by appellant Naresh is concerned, it is the case of the prosecution that he caused injury to Gyarasibai on head, but from the medical report, Gyarasibai had not received any injury on the head and the injuries received by Gyarasibai were caused by hard and blunt object.',
	(int) 23 => '<p>16. Now the question is whether the conviction of appellants Naresh and Ramesh under Sections 302/34 of IPC can be affirmed. Looking to the evidence on record, it is clear that appellant Naresh was present on spot and the only allegation against him is that he abused Chander. It has also come in the evidence that in return Chander also abused him and he only caused injury by 'Farsa' to Gyarasibai. Gyarasibai has not received any 'Farsa' injury as per medical evidence. Appellant Naresh has also been convicted under Sections 324/34 for one year R.I. and fine of Rs. 250/-, under Section 323/34, IPC for three months' R.I. and under Section 450, IPC for two years' R.I. with fine of Rs. 250/-. He has already suffered jail sentence of more than six months. As incident took place suddenly, there is no evidence of any premeditation. Thus, in the facts and circumstances of the case, conviction of appellant Naresh under Section 302/34 of IPC is set aside. However, his convictions under other sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by , him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each.',
	(int) 24 => '<p>17. So far as the conviction of appellant No. 3 Ramesh is concerned, it has come in the evidence that the incident took place suddenly without premeditations on the dispute of throwing of stones. It has also come in evidence that deceased and appellant Ramesh are members of the same family. Ramesh is a young man and he has already suffered jail sentence of more than 11 years. Also, there is no opinion by the doctor that the injuries were sufficient in the ordinary course of nature to cause death. The blood group of the deceased on the weapon was also not proved by the prosecution and the weapon was also not shown to the doctor. Doctor has also opined that it was possible to save the deceased by giving him proper treatment and blood infusion. No motive or prior enmity of the appellant Ramesh and deceased Rajju is reported on record. The deceased had come a day earlier to his village and suddenly became victim of the crime as dispute arose under heat of passion. Looking to all these factors, conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but fine amount is imposed. His convictions under Secions '23/34, 324/34 and 450 of IPC are hereby affirmed. He has already suffered jail sentence under the aforesaid sections. So far as question of awarding compensation to the family embers of the victim is concerned, Section 357(3) of the Cr.PC provides as under:',
	(int) 25 => '<p>When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment order the accused person to pay, by way of compensation such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.',
	(int) 26 => '<p>Hon'ble Supreme Court has elaborately discussed the scope of Section 357, Cr.PC inHarikishan and State of Haryana v. Sukhbir Singh : 1989CriLJ116 holding therein as under:',
	(int) 27 => '<p>10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with Sub-section (1). We are concerned only with Sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.',
	(int) 28 => '<p>The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon, the acts of each accused. Reasonable period for payment of compensation, if necessary by installments may also be given. The Court may enforce the order by imposing sentence in default.',
	(int) 29 => '<p>In the light of the foregoing discussion, compensation by way of fine amount to the tune of Rs. One lakh was proposed by this Court, but learned Counsel for appellant Ramesh submitted that financial condition of appellant Ramesh is not very good and as he is in jail for last eleven years, his family members will also be unable to pay such a huge amount. Considering the submission of learned Counsel for the appellant, it is directed that appellant Ramesh will pay a fine to the tune of Rs. 50.000/- (Rupees fifty thousand only) byway of compensation to the widow of deceased Rajju and for that Shri Rajeev Jain learned Counsel for the appellant Ramesh has no objection.',
	(int) 30 => '<p>18. Now we turn our attention to Criminal Appeal No. 444/98 which has been filed by the State after obtaining leave from this Court. Trial Court has acquitted the respondents finding that only three persons took part in the commission of crime and it has not been found proved that respondents also participated in the commission of crime or they caused injuries by 'Lathi' to the injured persons. Trial Court has also found that prosecution has failed to prove that respondents were also the members of any unlawful assembly and their common object was to commit any crime or to cause injuries to the injured or to cause death of deceased Rajju, and therefore acquitted them. Findings recorded by the Trial Court do not appear to be perverse as the incident took place between injured Chander and accused Naresh, Ramesh and Buddha. They assaulted Chander and when mother Gyarasibai came, they also assaulted her. There is nothing in the evidence of prosecution witnesses about the involvement of respondents. Therefore, it appears that the Trial Court has rightly acquitted them. Moreover, it is settled position under law that in appeal against acquittal there can not be any interference merely on the ground that another view is also possible from same set of evidence. Thus, the appeal filed by the State being devoid of any merit and substance is hereby dismissed.',
	(int) 31 => '<p>19. In the result, Criminal Appeal No. 440/97 stands partly allowed. Appellant No. 2 Buddha has expired. Therefore, his appeal stands abated. Conviction of appellant No. 1 Naresh under Sections 302/34 of IPC is set aside. However, his convictions under other Sections viz., 323/34, 324/34 and 450 of IPC are affirmed. So far as the question of his jail sentence is concerned, his jail sentence is reduced to that already undergone by him which is more than six months but fine amount under Sections 324/34 and Section 450 of IPC is enhanced to Rs. 2000/- (Rupees two thousand only) each. Appellant Naresh is in jail, he be released forthwith if not required in any other offence on his depositing the enhanced amount of fine. Conviction of appellant Ramesh under Section 302/34 of IPC is set aside. Instead he is convicted under Section 304 Part II of IPC. His jail sentence is reduced to that already undergone by him but he shall pay a fine to the tune of Rs. 50,000/- (Rupees fifty thousand only) by way of compensation to the widow, and if she is not alive, then to next legal heirs of deceased Rajju. His convictions and sentences under Sections 323/34, 324/34 and 450 of IPC are hereby also affirmed. He has already suffered jail sentence under the aforesaid sections. He is directed to pay the fine amount as awarded by the Courts below under those sections, if not already paid. He is in jail. He be released forthwith if not required in any other offence on his depositing the amount of fine.',
	(int) 32 => '<p>Criminal Appeal No. 444/98 being devoid of any merit and substance stands dismissed. Bail bonds and sureties of the respondents stand discharged.<p>',
	(int) 33 => '<p>'
)
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$cnt = (int) 34
$i = (int) 33
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