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Judgment
By the judgment impugned dated 30.9.2016, learned
Additional Sessions Judge No.4, Udaipur, recorded conviction of
accused Kailash and Kantilal, young boys of 19 and 20 years
respectively, for the offences punishable under Sections 341 and
302 / 34 Indian Penal Code and awarded sentence to undergo life
term imprisonment with a fine of Rs.10,000 each and further to
undergo two months imprisonment in the event of default in
payment of fine for commission of the offence punishable under
Section 302 / 34 Indian Penal Code.
In brief, facts of the case are that on 26.2.2012 a
written report was submitted by one Shri Bherulal to the Station
House Officer, Police Station Panarva with assertion that on
25.2.2012, when his grand father Bhura was returning to home
from the shop of Roshanlal, accused Kantilal and Kailash at about
06:30 PM, standing nearby the under construction house of Anna,
had quarrel with him. Kailash pelted a stone that caused injury on
the jaw of Bhura, consequently he fell down and then Kantilal gave
a lathi blow on his back. Both the accused persons then fled from
the spot of occurrence. The injuries caused resulted into death of
Bhura.
Acting upon the written report, a case was registered
against the accused persons for the offences punishable under
Sections 341 and 302 / 34 Indian Penal Code. After regular
investigation a charge sheet was filed before the court of Judicial
Magistrate, First Class, Kotda who committed the same to the
Sessions Court, Udaipur being a case Sessions triable. After
hearing the accused persons, a charge was framed against them
for the offences punishable under Sections 341 and 302 / 34 Indian
Penal Code and on denial of the same trial commenced as desired.
The prosecution supported its case with the aid of
evidence adduced by witnesses PW-1 to PW-16 and documents
marked as Ex.P/1 to Ex.P/28. While availing the opportunity to
explain the adverse and incriminating circumstances in
prosecution evidence the accused termed the same false and
concocted with explanation that deceased Bhura would have gone
to liquor shop and must have fell down under intoxication. No
evidence in defence was adduced.
The trial court, after examining the evidence available
on record, recorded conviction and awarded sentence.
In appeal, the sole argument of learned counsel for the
appellants is that even by accepting the prosecution case the
offence said to be committed by them does not travel beyond an
offence described under Section 304 Part-II Indian Penal Code.
According to learned counsel, as per medical evidence the cause
of death is hemorrhagic shock due to injury on spleen and left
lung and that injury was caused due to a single lathi blow on back
of the deceased. It is asserted that the sequence of events
indicates that the appellants were not at all intending to cause
death of Bhura but due to some spontaneous quarrel, a lathi blow
was given on back, which is not a vital part of human body. The
accused, if had any intention to cause death of Bhura, then they
must have caused lathi blow on some vital part and not on back of
the deceased.
Learned Public Prosecutor quite fairly accept that the
injury caused was not on any vital part but on back of deceased
that that too spontaneously during the course of certain hot
deliberations.
Heard learned counsels and examined the record.
Looking to the medical evidence available on record
there is no doubt about homicidal death of Shri Bhura.
The only issue required to be examined is whether the
present accused persons participated in the crime in question and
if so, then whether that amounts to commission of an offence
punishable under Section 302 Indian Penal Code.
The prosecution cited Shri Shri Bherulal (PW-1), Shri
Kalu (PW-2), Shri Ramesh Chandra (PW-4), Smt. Mithudi Bai
(PW-5), Smt. Nani Bai (PW-6) and Shri Kika (PW-7) as eye
witnesses.
Shri Bherulal (PW-1) stated that at about 06:00 PM on
25.2.2012, his grand father Bhura was returning to his house. At
that time accused Kailash intercepted him and asked some
question. He then pelted a stone that caused injury on jaw of
Bhura. A lathi blow then was given by Kantilal. Both the accused
persons immediately thereafter fled from the spot of occurrence.
Shri Kalu (PW-2) stated that on fateful day Kailash and
Bhura had some hot deliberations and during that Kailash caused
an injury on jaw of Bhura. Kanti then caused a lathi injury on the
back of Bhura, as a result of that he died at the spot.
Shri Ramesh Chandra (PW-4) stated that his grand
father Bhura had some quarrel with Kailash and Kanti, who are his
neighbours. During the course of quarrel, Kanti caused a lathi
blow and Kailash caused a stone injury to Bhura, in result Bhura
died at the spot.
Smt. Mithudi Bai (PW-5), Smt. Nani Bai (PW-6) and
Shri Kika (PW-7) also narrated the facts in same tune.
From examination of the facts stated by all the eye
witnesses, it is apparent that the accused were not armed with
any lethal weapon and they had some spontaneous quarrel with
deceased Bhura. At the first instance, accused Kailash threw a
stone, that caused injury at the face of Bhura, a lathi blow then
was caused by accused Kanti. After causing these injuries, both
the accused persons fled from the spot. The lathi injury was
caused by Kanti at the back of deceased Bhura. It is only on
medical examination, it was noticed that as a consequence to
injury on back, spleen of deceased suffered injury that caused
hemorrhagic shock, due to which Bhura died. In entirety, no
evidence is available on record to indicate that the accused
persons had any intention to cause death of Bhura.
In view of whatever stated above, we are of considered
opinion that the trial court wrongly arrived at the conclusion that
the accused committed an offence punishable under Section 302
Indian Penal Code. The offence committed by the accused
persons, looking to the evidence available on record, does not
travel beyond an offence punishable under Section 304 part-II
Indian Penal Code .
In view of it, the instant appeal deserves acceptance in
part. Accordingly, the same is allowed in part. The conviction of
the accused persons recorded for the offence punishable under
Section 302 / 34 Indian Penal Code is set aside. The sentence
awarded for commission of the offence as above too is set aside.
The accused persons are convicted for the offence punishable
under Section 304 Part-II/34 and also for the offence punishable
under Section 341 Indian Penal Code. The accused persons are
sentenced to undergo rigorous imprisonment for a period of five
years with a fine of Rs.10,000/- each. They are required to further
undergo rigorous imprisonment for a term of two months in the
event of default in payment of fine.