Gendalal and ors. Vs. the State of Madhyha Pradesh, Through Its Police Station - Court Judgment

Abhay K. Gohil, J.

1. In this appeal the appellants have challenged their conviction under Section 302, 302/149 IPC and sentenced to life imprisonment and fine of Rs. 3,000/- and in default of payment of fine further six months' R.I. Appellants were tried for the aforesaid charges in Session Trial No. 294/95 before the IInd A.D.J. Guna and vide judgment dated 30.9.1999, they have been convicted.

2. As per prosecution story, on 13.6.1995 between 8-9 p.m. deceased Ramhet accompanied with Guddibai, Nathulal and Gulabbai lodged the report at Police Choki Ukavad of this effect that he had gone to Raghogarh and he was returning back by the local bus. After getting down from the local bus, he was coming to house. In the way at 8-9 p.m. appellants Parvatsingh, Premnarayan, Gendalal, Kailash and Nannulal armed with farsa and lathi came out rom the bushes and beat him. Parvat Singh inflicted lathi blow on the leg, Gendalal inflicted farsa in the left leg, which was cut and fractured and when he fell down Kailash and Nannulal gave lathi blows. On the aforesaid report crime was registered, matter was investigated and after completing the investigation charge sheet was filed.

3. During trial prosecution examined as many as nine witnesses and found that the ocular evidence is corroborated by medical evidence and convicted the appellants as aforesaid, against which they have preferred this appeal.

4. At the outset learned Counsel for the appellants Shri T.C. Bansal, Advocate submitted that looking to the injuries received by the deceased, which are mostly on non vital part it can not be said that intention of the appellants was to commit the murder of the deceased, whereas one appellant Gendalal was having farsa in his hand but he has not inflicted any farsa blow on the vital part of the body, therefore his submission was that casa will fall only under Section 304 Part II read with Section 34 IPC. His further submission was that the amount of fine may be enhanced. In reply learned Counsel for the respondent State Shri M.P.S. Shadoria, Public Prosecutor has supported the judgment.

5. First of all we have perused the evidence of Dr. virendra Kumar Sharma (P.M.5), who performed the autopsy of the dead body. His post mortem report is Ex.P/2. According to him deceased received two incised wounds; one on the left leg below the knee and another incised wound on the same leg below the knee. Both these injuries were 7,5 x 2 cm. and 20 x 6 cm. muscle deep and have caused fracture. The left leg was just at the verge of separation. The injured also received two penetrating wounds in the left leg above the knee and on left arm and there was also fracture in the radius bone. Left leg was also fractured. Injuries No. 1 and 6 were caused by blunt and sharp edged cutting weapon and injuries No. 2 and 3 were caused by some sharp and pointing penetrating weapon and injury No. 4 and 5 were caused by hard and blunt object. Deceased died because of syncope due to excessive bleeding from the multiple stab wound and incised wound and fracture. According to him the injuries were homicidal in nature and were sufficient to cause death in the ordinary course of nature. In the cross examination he has admitted that he has not mentioned this fact in his post mortem Ex.P/2 that the injuries were sufficient to cause death in the ordinary course of nature. He has admitted that deceased could have saved, if he would have received proper medical treatment in time. He has further admitted in the cross-examination that there was no injury on the vital part of the body. From the aforesaid medical evidence, it is clear that the deceased died because of the injuries caused to him in the incident.

6. Now the question for our consideration is that whether the appellants are assailants and whether the case will fall within the purview of Section 300 read with Section 302 IPC and whether it will fall under Section 304 Part II read with Section 34 IPC.

7. There is no dispute that during trial one accused Prem Narayan died and the case remained only against four accused persons. Therefore, provisions of Section 149 IPC will not be attracted.

8. As the learned Counsel for the appellants himself has not challenged that the appellants are not the assailants, therefore for that we have not examined the evidence of witnesses in detail. Guddi (P.W.1), who is the daughter of the deceased, Gulab Bai (P.W.2), Who is the wife of the deceased, Shyam Bai (P.W.3), who Mas aged about V12 years and is also the daughter of the deceased, have supported the prosecution case but it was argued that two relatives of the deceased, Jagannath (P.W.4) and Nathulal (P.W.6) have not supported the prosecution. Nathulal (P.W.6) is the father in law of the daughter of the deceased. He was present at the time of commission of crime at the house of the deceased. He had seen the incident. His name also appears in the FIR. He had accompanied the deceased to the Police Station, but in the court he has not supported the prosecution. From the evidence of Guddi (P.W.1), Gulab Bai (P.W.2) and Shyam Bai (P.W.3) coupled with the evidence of deceased in the shape of dying declaration as he himself has lodged the FIR CX.P/4, it is clear that the appellants were the assailants.

9. The learned Counsel for the appellants submitted that looking to the overt act of the appellants, whose who were the assailants, they all caused injuries to the deceased on the non vital part of the body and they have not caused injury on any vital part of the body, therefore their intention was not to cause death of the deceased. Their relations with the deceased were inimical and there was disputed between them on account of some land. To support his contention, he also placed reliance on the decision in the case of Jagir Singh v. state of Haryana 2004 SCC (Cri) 1162, Narayan Raghunath Phadke v. State of Maharashtra 1995 SCC (Cri) 704.

10. In the case of Jagir Singh V. State of Haryana 2004 SCC (Cri) 1162, the Supreme Court has held that though the deadly weapons were used in the commission of crime, but no injury was inflicted on any vital part of the body. Blows were aimed only on the limbs. None of the injuries was individually sufficient to cause death in the ordinary course of nature. Death is due to excessive bleeding and the motive of the crime as suggested by the prosecution also found weak and stale. Belated medical help to the deceased aggravated the cause of death. Therefore, in these circumstances it was held that the case will not fall under Section 302/34 IPC, but the appellants are liable to be convicted under Section 326/34 IPC.

11. In this case too as per the FIR and the evidence on record fatal injury is caused by Gendalal by a weapon like farsa and that injury was only a fatal injury on the body of the deceased that too on the non vital part. It was further argued that Guddibai (P.W.1) and Gulab Bai (P.W.2), who are the wife and daughter of the deceased have not named the appellant Kailash.

12. Thus, we are satisfied that the intention of the appellants may be to cause bodily injury to the deceased but their intention was not to cause the death of the deceased. In such circumstances the case of the appellant will not fall within the purview of Section 300 IPC and under the definition of murder but the case will fall only within the purview of Section 299 IPC culpable homicide not amounting to murder and for that appellants can only be convicted under Section 304 Part II IPC.

13. It was contended that the appellant Gendalal, Nanno Lal and Parvat Singh have suffered jail sentence of more than six and half years and appellant Kailash has suffered jail sentence of one year, therefore they be released on undergone jail sentence. For appellant Kailash it was argued that his over act has not been found proved. He was carrying lathi and there is no specific allegation against and more so the allegations against all the appellants are of omnibus nature.

14. Considering the evidence and various circumstances

on record we are also of the view that the appellants are entitled to be released on the undergone jail sentence, but the fine .amount of Gendalal is enhanced from Rs. 3000/-(Rupees three thousand) to Rs. 25,000/- (Rupees twenty five thousand). Fine amount of Parwat Singh and Nannu Lal is enhanced from Rs. 3,000/- to Rs. 15,000/-(Rupees fifteen thousand) and Kailash from Rs. 3,000/- to Rs. 10,000/-(Rupees ten thousand). On depositing the fine amount the appellants be released. In default of payment of fine amount, they will under go further three years R.I. If the appellants have deposited the earlier fine amount, the same be adjusted. On depositing the fine amount a sum of Rs. 65,00000/- (Rupees sixty five thousand) be paid as compensation to the wife of the deceased.

15. This appeal partly succeeds and is allowed to the extent indicated above.