Karan Singh and Others vs State of M.P.

Awasthy, J.

Appellant/accused have filed the appeal against the judgment and order dated 24.4.2004 in S.T. No. 187/2001 passed by learned Additional Sessions Judge Shajapur of their conviction and sentence u/s 302 r/w 34 of the IPC for the imprisonment for life and fine of Rs. 100/- and in default of payment of fine R.I. of 6 months u/s 325/34 for the R.I. of one year and fine of Rs. 100/- and in default of payment of R.I. of 3 months.

The prosecution case is that on 25.5.2001 at about 6 AM at Village Mehatpur when Kaniram with his Son of Sujansingh (PW1) and Mangilal (PW2) went to their field and when they asked the accused persons not to dig the pits for their fencing on the boundary of their field, the quarrel ensued and the accused persons with Lathi and Sabbal caused the injury on the legs and the head of Kaniram. When Mangilal made an attempt to intervene accused persons also caused the injuries to him. Sujansingh (PW1), Chandersingh (PW7) were the eye witness. That when the accused ran away Tuphansingh (PW3), Balusingh (PW4), Parvatibai (PW8) and Mangilal (PW10) reached there and while they were taking the injured Kaniram to the Hospital, he died on his way. The FIR Ex.P/2 was lodged at about 1.30 PM in Police Station Susner by Sujansingh (PW1). The dead body of Kaniram was sent for autopsy on the same day to Primary Health Centre Susner where Dr. D.S. Parmar (PW5) had found that there were fractures in the occipital bone and the total number of injuries were 10. That the cause of the death was the injuries on the head of the deceased, and Ex.P/15 is his report. On the same day Mangilal (PW2) was examined and vide report Ex.P/6 it was reported that he was having three injuries on his body. During the investigation, Station House Officer B.S. Solani (PW17) has recovered the Lathi and the Sabbal from the possession of the accused persons and got prepared the map of spot Ex.P/13 and after usual investigation the charge sheet was filed against the accused persons.

The accused have abjured the guilt and denied the statement of the prosecution witnesses. The defence of the accused persons was that they were falsely implicated due to the dispute over the possession of the land. No witness in the defence was examined.

The learned Trial Court has examined 17 prosecution witnesses and relying on the testimony of the eye witnesses, the accused were convicted and sentenced as 6tated above.

Appellants have not seriously assailed the finding that the accused has caused the injury to deceased Kaniram and Mangilal (PW2) and the conviction is assailed on the ground that the offence u/s 302 is not proved against the accused persons and they deserve to be convicted only u/s 325/34 of the IPC.

Sujansingh (PW1) has stated that at about 8 AM when he was in his field, the accused persons were putting the fencing on the boundary in between the field of the accused Kaniram. That Kaniram and Mangilal asked them not to dig the pit on there side of field and after hot exchange of words, the accused persons assaulted Kaniram with Lathi and Sabbal and the injury was also caused to Mangilal (PW2). Sujansingh (PW1) has testified that Kaniram expired when he was being taken to the Hospital and thereafter the report Ex.P/1 was lodged by him in the Police Station Susner.

The version of Mangilal (PW2) and prompt FIR Ex.P/1 fully corroborate the statement of Sujansingh (PW1). Dr. D. S. Parmar (PW5) has examined Mangilal (PW2) on 25.5.2001 and reported that he was having three injuries caused by hard and blunt object within 12 hours. The prosecution has examined eyewitness Chandersingh (PW7) who has also supported the prosecution story. In view of the consistent statement of eye witness Sujansingh (PW1) Mangilal (PW2) and Chandersingh (PW7) the finding of the facts that the accused persons have caused the injuries to Kaniram and Mangilal were rightly not assailed by the learned Counsel for the appellants.

Dr. D.S. Parmar (PW5) has stated that in the autopsy of deceased Kaniram following injuries were found on his body.

1) Swelling near the left ear 7 cm x 5 cm.

2) Lacerated wound 2 cm x 1, 1/2 cm x 1 cm on the left side of the skull.

3) Bruise 7 cm x 3 cm on the left thigh.

4) The bone of the left leg was broken and there was an injury measuring 1,1/2 cm x 1 cm. The bone was visible.

5) Lacerated wound 1,1/2 cm x 1 cm on the right leg near the knee.

6) Lacerated wound 1,1/2 x 1 cm below the left knee.

7) Bruise 2.5 cm x 1.5 cm on the interior aspect of the left leg.

8) Lacerated wound 4 cm x 1,1/2 cm x 1,1/2 cm on the knee cap of the left leg.

9) Lacerated wound 4 cm x 1,1/2 cm x 2,1/2 cm on the left leg.

10) Lacerated wound 2,1/2 cm x 1,1/2 cm x 1,1/2 cm on the lower side of the knee joint of the left leg.

11) The bones of the left leg tibia and fibula were found broken.

12) The bones below tibia fibula of the leg were broken.

Dr. D.S. Parmar (PW5) has testified that on the internal examination the temporal bone was found fractured and there was injury on the brain and the cause of the death was the head injury of the deceased.

From the evidence it is clear, that the accused have caused the injuries on account of the sudden quarrel which has taken place due to putting the fencing on the boundary of the field. The accused had not come on the spot armed with the weapons. The Lathi and Sabbal were picked up by the accused when the quarrel has ensued about putting the fencing. The fact that most of the injuries were caused by the accused persons on the leg and thigh of the deceased indicate that the real intention of the accused were not to cause the death. However, some of the accused have caused one blow on the head and a blow near the ear of the deceased which has resulted in the death of the deceased. It is not clear, that which accused had, caused injury to the deceased resulting in the fracture of the parietal bone. As the incident was not pre-meditated and the accused persons having the full opportunity to cause the injuries on the vital part of the accused have caused most of the injuries only on the leg and thigh, in the facts and circumstances highlighted above the case of deliberate intention to cause the death is not made out and the accused can only be convicted for the offence punishable u/s 304 Part-I of the IPC.

The appeal is partly allowed. The appellant accused are convicted and sentenced for the offence punishable u/s 304 Part-I r/w Section 34 of the IPC for the rigorous imprisonment of 7-7 (seven-seven) years. The conviction and sentence u/s 325/34 of the IPC is maintained. The conviction and sentence u/s 302/34 is reduced as stated above.