Bhikam Singh (dead) and Another vs State of MP

(1) Appellant No.2- Malam Singh has preferred the present appeal against the judgment dated 08/09/1999, passed by Sessions Judge, Vidisha in Sessions Trial No.172/1997, whereby the appellant No.2 has been convicted of offences under Sections 302 r/w 34 and 324 of IPC and sentenced to life imprisonment with a fine of Rs.1,000/- and two years'' rigorous imprisonment respectively.

(2) Prosecution''s case, in short, is that on 03/07/1997, at about 11:20 am complainant- Gulab Singh lodged the FIR Ex.P/10 at Police Station Kotwali, Vidisha that at about 10:00 am he went to his field and he found that tractor of Karan Singh was ploughing in the field. Since that year, the field was

kept on mortgage by deceased Nathu Singh, father of complainant- Gulab Singh, therefore, he was entitled to plough that land and hence he tried to stop the tractor. In the meantime, accused Bhikam Singh, Malam Singh and Narbardi Bai went to the spot and they gave a threat that if he would try to stop the tractor, then tractor would be passed over upon him. In the meantime, complainant- Gulab Singh, his brother Madan Singh (PW-8) and Khechan Singh etc. also reached the spot. Then Bhikam Singh gave a blow of sword on the head of deceased Nathu Singh. Malam Singh gave a blow of sword to Madan Singh. Thereafter, various witnesses saved the various victims. The injured Nathu Singh was taken to police station Kotwali, Vidisha by tractor but on the way he succumbed to the injuries..

(3) After registration of the case, SHO Suresh Singh Sikarwar (PW-12) sent the body of deceased Nathu Singh for post mortem and injured- Gulab Singh and Madan Singh for their medico-legal examination. Dr. MK Ostwal (PW-10) performed the post mortem on the body of deceased Nathu Singh and gave a report Ex.P/12. He found one lengthy injury on the head of deceased Nathu Singh on his occipital region. Brain matter was visible from opening of the injury and according to Dr. Ostwal, the deceased died due to head injury. Dr. AK Jain (PW- 6) examined the victim Madan Singh and gave a report Ex.P/8. He found one incised wound on his left parietal region and one contusion on left ankle joint. Simiarly, he examined the

victim Gulab Singh and gave a report Ex.P/9. He found one incised wound on occipital portion of his head. The victim Gulab Singh and Madan Singh were also referred for x-ray examination. However, Dr. Ostwal (PW-10) examined them radiologically and no grievous injury was found to them. During investigation, the Investigating Officer picked up the plain soil and blood- stained soil from the spot. One sword each was recovered from appellant Malam Singh and co-accused Bhikam Singh. Clothes of victims Gulab Singh and Madan Singh were taken. One stick was recovered from accused Karan Singh. Clothes of deceased were obtained from the hospital. All such articles were sent for Forensic Science analysis. The Forenscic Science Labotory in its report Ex.P/33, found all the articles to be blood-stained whereas the report of serologist was not produced before the trial Court. After due investigation, the charge-sheet was filed before Chief Judicial Magistrate, Vidisha who committed the case to the Court of Session.

(4) The appellants abjured their guilt. They took a plea and took a defence that actually they were the victims and they were beaten by the complainant party. In defence, Jagnnath Singh (DW-1) and Santosh (DW-2) were examined.

(5) During the pendency of this appeal, appellant No.1- Bhikam Singh had expired and, therefore, appeal filed by him, has turned abated.

(6) After considering the evidence adduced by the parties, the trial Court convicted and sentenced the

appellant No.2 Malam Singh, as mentioned above.

(7) We have heard the learned counsel for the parties.

(8) First of all, it was to be considered as to whether death of deceased- Nathu Singh was homicidal in nature or not? In this connection, Dr.M.K. Ostwal (PW10) has stated that he performed the post mortem on the body of deceased- Nathu Singh and gave a report Ex.P/12. One incised wound size of 14 cm long was found on occipital area out of which brain matter was visible. Bone was also found broken and injury was sufficient to cause death of the deceased. Hence, deceased- Nathu Singh died due to that injury. Consequently, his death was homicial in nature. There is no reason to disbelieve the opinion given by Dr.Ostwal and hence, it is proved that the deceased died due to head injury and it was sufficient to cause his death and death of deceased- Nathu Singh was homicial in nature.

(9) Learned counsel for appellant No.2 has submitted that deceased- Nathu Singh sustained a single injury which was caused by co-accused Bhikam Singh. The injured eyewitness Gulab Singh (PW-7) and Madan Singh (PW-8) have stated that Bhikam Singh gave a blow of sword on the head of decased- Nathu Singh. There is no allegation against appellant No.2- Malam Singh that he assaulted deceased- Nathu Singh or exhorted co-accused Bhikam Singh to do so and hence, by mere presence, appellant Malam Singh could not be held liable for offence under Section 302

with the help of Section 34 of IPC. The submissions made by learned counsel are acceptable and, therefore, it is clear that no common intention of appellant No.2 Malam Singh alongwith co-accused Bhikam Singh could be established by the prosecution so that he could be convicted of offence under Section 302 with help of provision of Section 34 of IPC. The trial Court has committed an error in convicting appellant No.2 Malam Singh for offence under Section 302 read with Section 34 of IPC.

(10) The appellant No.2 has also been convicted of offence under Section 324 of IPC relating to victims Gulab Singh and Madan Singh. In this connection, Gulab Singh (PW-7) and Madan Singh (PW8) have stated that when their father tried to stop the tractor and Bhikam Singh assaulted their father Nathu Singh with a sword, these witnesses had tried to intervene. According to Madan Singh, accused Karan Singh gave a blow of sword upon his head whereas Karan Singh was acquitted by the trial Court. Appellant Malam Singh neither assaulted the victim Madan Singh nor he had any common intention with Karan Singh because Karan Singh has already been acquitted from the aforesaid charge of Section 324 of IPC and, therefore, appellant Malam Singh could not be convicted of offence under Section 324 with help of Section 34 of IPC for victim Madan Singh. Gulab Singh and Madan Singh have stated that Malam Singh assaulted the victim Gulab Singh with a sword and he sustained an injury on his head. In this connection, a timely lodged

FIR Ex.P/10 is proved by Gulab Singh and consequently, Dr. AK Jain (PW-6) has proved the MLC report of victim Gulab Singh. He found one incised wound on occiptal region of victim Gulab Singh having size 9cmx2cm which was bone deep. Such injury could be caused within six hours of the examination. Dr. AK Jain (PW-6) has given MLC report Ex.P/9 on that count. Looking to the evidence of witnesses and corroboration of FIR Ex.P.10 and evidence of Dr. AK Jain (PW-6), it is proved beyond doubt that appellant Malam Singh assaulted the complainant Gulab Singh by sharp cutting weapon like sword, causing a simple injury.

(11) When a person has sharp cutting weapon like sword then he should be aware of result of such assault and, therefore, according to the provisions of Section 39 of IPC, it shall be presumed that he had voluntarily caused such injury. The learned counsel for the appellant has submitted that appellant Malam Singh had sustained injuries and his injuries were proved by Dr.Ostwal (PW-10). MLC report of appellant Malam Singh was Ex.P/16. He sustained mainly three injuries; one incised wound on his right thumb and one lacerated wound on his right parietal region. He was complaining of pain in right forearm. However, Dr.Ostwal has stated that such injuries could be caused within 24-36 hours whereas he examined the appellant Malam Singh on 04/07/1997 whereas the incident took place on 3/7/1997. Time range as given by Dr. Ostwal is a bigger range and it was for the

appellant to prove that he sustained the injuries in the incident. However, no FIR is proved by appellant Malam Singh in this context. The defence witnesses Jagnnath Singh (DW-1) and Santosh (DW-2) were examined in support of the appellants, however, they have stated that Madan Singh gave a blow of sword causing injury to deceased Nathu Singh. There was no crowd at the spot and it was not possible that Madan Singh would have caused the death of his father i.e. the deceased Nathu Singh.Hence, it would be apparent that the defence witnesses are telling a falsehood and they cannot be believed. Since no FIR was filed or proved by the appellant that there was a cross-case or free-fight done by the complainant party at the spot and it is not established that appellant MalamSingh had sustained injuries in the incident itself, claim of right of private defence cannnot be accepted.

(12) On the basis of aforesaid discussion, when it is proved that appellant Malam Singh had voluntarily caused hurt to the victim Gulab Singh with a sharp cutting weapon without any sudden or grave provocation and without any right of private defence then the trial Court has rightly convicted him of offence under Section 324 of IPC.

(13) So far as the sentence is concerned, it appears that appellant Malam Singh was the first offender. Since he was above 21 years of age, therefore, there is no need to give him advantage of Probation of Offenders Act, but, he gave only one blow to the victim Gulab Singh and, therefore, the sentence as recorded

by the trial Court appears to be harsh. Appellant Malam Singh remained in custody for six months during the trial and appeal. Hence, it would be appropriate that his sentence may be reduced to the period for which he remained in custody.

(14) On the basis of aforesaid, the appeal filed by appellant No.2 Malam Singh is hereby partly allowed. His conviction and sentence of offence under Section 302 read with Section 34 of IPC is hereby set aside. He is acquitted from that charge. However, his conviction of offence under Section 324 of IPC is maintained but his jail sentence is reduced to the period for which he remained in custody.

(15) Appellant No.1-Malam Singh is on bail, his presence is no more required and, therefore, it is directed that his bail bonds shall stand discharged. (16) Copy of the judgment be sent to the trial Court along-with its record for information.