Keshar Singh vs State of M.P.

S.L. Kochar, J.—Appellant Keshar Singh alias Keshia alias Keshu being dissatisfied with the judgment dated 23-6-1996 rendered by the Additional Sessions Judge, Rajgarh (Biaora) in Sessions Trial No. 134/94, thereby convicting the appellant for the offences punishable under sections 302 and 323 (on two counts) of the Indian Penal Code and sentencing him to suffer imprisonment for life with fine of Rs. 5,000/-, in default of payment of fine to suffer addl. R. I. for six months and six months respectively. All the substantive sentences were directed to run concurrently. However, the accused Ramnath Singh and Sohan Singh have been acquitted of the offences with which they were charged, filed this appeal.

Brief facts of the case of the prosecution as unfolded before the trial Court were that on 11-7-1994 at about 5.00 PM, in the jungle of village Cri. Appeal No. 417 of 1996 decided on 4-2-2003. (Indore) Shekhanpur, deceased Jagannath Urjan alias Arjunlal (PW-1) and Kanwarlal (PW-3) had gone for grazing their buffaloes. When they were grazing the buffaloes, appellant/accused Kesharsingh came over there and warned them not to graze their cattle there. Deceased Jagannath and Arjunlal said that it was a Government land. Appellant insisted them to take their cattle to village Shekhanpur to which the deceased refused. Thereupon, appellant Kesharsingh began to assault Jagannath by lathi and taking Jagannath and his buffaloes to the village, and took them upto his house. On the way also, the appellant inflicted lathi-blows on Jagannath and Kanwarlal.

At about 6.00 PM Arjunlal escaped himself from the clutches of the appellant and went away and disclosed the incident to Ramcharan (PW-2), son of the deceased. Injured was also brought there on a cot who was murmuring that Kesharsingh had assaulted him. After a shortwhile, Jagannath breathed his last. PW-1 Arjun lal alias Urjan reported the matter at Police Chowki Lakhanwas on which crime under sections 302 and 323 was registered. The First Information Report is Ex. P/10. The dead body was sent to the hospital for postmortem examination, Postmortem Report is fix. P/10.

After usual investigation, the accused persons were charge-sheeted. The appellant/accused abjured his guilt and after trial, the trial Court finding him guilty convicted and sentenced as indicated above.

We have heard Shri A. Siddiqui, learned counsel for the appellant and Shri G. Desai, learned Dy. Advocate General appearing for the State and perused the entire record carefully.

Learned counsel for the appellant has putforth a solitary contention for consideration of this Court that even if the complete prosecution story is accepted, the offence would not fall beyond section 304 (Part II) of the Indian Penal Code. According to him, the appellant and the deceased were not having any previous enmity. The incident had taken place on a trivial issue i.e. about grazing of cattle. According to the appellant, the deceased and his companions were grazing their buffaloes on his land, whereas, according to the deceased and his companions they were grazing the buffaloes on Government land. On this dispute, some lathi-blows were inflicted by the appellant on non-vital parts of the body of the deceased, out of which, one blow was fatal causing fracture of rib-bone and one fractured bone pierced into the lung of the deceased resulting in his death. According to the learned counsel for the appellant, the appellant had no intention to commit murder of the deceased, but he had an intention just to teach him a lesson for doing illegal act of grazing his cattle on his land.

On the other hand, learned Prosecutor supported the judgment of conviction as recorded by the trial Court.

Having heard the learned counsel for the parties and after perusal of the record, we are of the opinion that the statements of the eye-witnesses PW-1 Urjan alias Arjunlal and PW-3 Kanwarlal when they were grazing their buffaloes appellant Kesharsingh approached and warned them not to graze the cattle on his land. The objection was repelled by them saying that they were grazing the cattle on the Government land. Thereafter, the appellant started taking buffaloes from that place and also asked the deceased Jagannath to come along with him, but he refused to do so on which, the appellant dealt some lathi-blows on his person. Both these witnesses have also deposed that they were also assaulted by lathi by the appellant on the way and at his house, but no medical report has been filed by the prosecution showing the injuries sustained by them in the alleged incident.

The say of Kanwarlal (PW-3) is that, after reaching near the village Dungarpur, his buffaloes were left by the appellant and, therefore, he came back to his house with his buffaloes while the buffaloes of deceased Jagannath and PW-1 Urjan alias Arjunlal were with them. Along with PW-3 Kanwarlal, Arjunlal also reached to his village and disclosed about the incident. They again went back to village Shekhanpur and brought back the deceased Jagannath to their house Jagannath told about his beating by the appellant. After bringing Jagannath to his house, they tried to make him to drink milk, but he could not do so and died.

PW-1 Urjan alias Arjunlal (PW-1) has made lot of exaggerations in his statement about beating the deceased by the appellant. According to him, several blows were given by the appellant to the deceased Jagannath and sustaining number of injuries on his person whereas according to the medical report and statement of Dr. Siddiqui (PW-11), the deceased suffered only three bruises. Bruise No. 1 was on the waist and its length was upto the upper portion of scapula region. Underneath this bruise, there was a fracture of 9th, 10th and 11 ribs. One pierced into his lung. Bruise No. 2 was on the left side of scapula region. Bruise No. 3 was also on the posterior aspect of chest. In cross-examination, this witness testified that there were no injuries on the head, chest, stomach, hands and legs. All the three bruises were on the scapula region (Peeth).

The statement of medical expert is clearly indicating that the deceased suffered all the three bruises on non-vital part of the body, but unfortunately because of injury No. 1, there was a fracture of rib-bones and one fractured bone pierced into his lung.

Having regard to the facts and circumstances of the case, we are of the firm view that the appellant was not having any intention to commit murder of the deceased. He was not having any previous enmity or motive to form intention to commit murder of the deceased. The dispute arose on account of grazing of buffaloes between two farmers. The prosecution has not led any evidence regarding ownership of the land where the cattle were grazing by the deceased and his companions. It also appears to be very unreasonable and less believable that the appellant was all alone whereas the deceased was along with PW-1 Urjan alias Arjunlal and PW-3 Kanwarlal and all these three persons were grazing their cattle there and, therefore, they must be having some sort of weapons like lathi or stick in their hands. In that event, they would not have allowed the appellant alone to take their cattle as well as the deceased forcibly upto his village and house while assaulting him.

Looking to the facts mentioned in the First Information Report (Ex. P/10) lodged by PW-1 Urjan alias Arjunlal at Police Chowki Lakhanwas as well as the statements of PW-1 Arjunlal and PW-3 Kanwarlal, there is no difficulty to come to the conclusion that both the witnesses are not giving true picture of the incident. It appears that the incident had taken place at one point of time and there is possibility that the appellant might have taken their cattle forcibly for lodging them to the cattle-pond on the ground that they were grazing them on his land and the deceased along with his companions tried to rescue their cattle and at that juncture the alleged incident had taken place and appellant dealt some blows which lended on non-vital parts of the deceased. The version of the witnesses about assaulting them by lathi is not corroborated by any evidence. Therefore, the totality of circumstances is clearly indicating that the appellant had not caused injuries with an intention to commit murder of the deceased. But, at the same time, it can be held that he was having knowledge that his act was likely to cause death of the deceased.

In the case of Molu and Others Vs. State of Haryana, , Molu and his companions had caused as many as 16 injuries on the person of the deceased. Out of these injuries, maximum injuries were on non-vital parts of the body. The deceased died because of shock and haemorrhage as a result of fracture of right ulna and bleeding from large blood vessels due to injury No. 11. Supreme Court has held that except injury No. 11, all other injuries were on non-vital parts of the body and were superficial. In this case, two kinds of weapons like hard and blunt object and sharp edged weapons were used and two persons had died. But, looking to the nature of injuries, part of the body and back-drop of the case, the Supreme Court has held that the appellants did not intend to cause deliberate murder of two deceased persons. There is no evidence to show that any of the accused ordered killing of the deceased persons or incited or in any way expressed a desire to kill the deceased persons at the spot. In these circumstances, we are satisfied that there is no legal evidence in this case that the accused intended to cause the murder of the deceased. The fact, however, remains that the accused have caused multiple injuries on both the deceased persons on various parts of their bodies and, therefore, they undoubtedly had the knowledge that the cumulative effect of the injuries would result in the death of the deceased. In this case, the Supreme Court held the appellants guilty for the offence u/s 304 (Part II) of the Indian Penal Code and sentenced them rigorous imprisonment for seven years.

Applying the test as laid down by the Apex Court in the case of Molu and others (supra), we feel consciously that the case of the present appellant stands on better footing and his act would also fall within the purview of section 304 (Part II) of the Indian Penal Code (culpable homicide not amounting to murder).

In the result, this appeal stands allowed in part. The conviction and sentence of the appellant for the offence punishable u/s 302 of the Indian Penal Code are set aside. Instead he is convicted for the offence punishable u/s 304 (Part II) of the Indian Penal Code. However, the conviction and sentence of the appellant for the offence u/s 323 (on two counts) of the Indian Penal Code are maintained. The appellant is in jail from 26-3-1996. In all, he has suffered about six years and eleven months'' of incarceration. He is sentenced to the period already undergone. The sentences are directed to run concurrently.