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2006 DIGILAW 425 (MP)

SHAKEER KHAN v. STATE OF M P

2006-03-22

S.K.KULSHRESTHA, S.S.DWIVEDI

body2006
Judgment ( 1. ) THIS appeal assails the judgment dated 04-01-2006 of the learned additional Session Judge, Jaora (District Ratlam) in Session Trial No. 37/2005 by which the learned Judge has convicted the two appellants under Section 302 of the Indian Penal Code and sentenced each of them to imprisonment for life and fine of Rs. 2,000/ -. In default of payment of fine, the appellant, in default, has been directed to suffer further simple imprisonment for six months. ( 2. ) THE incident dates back to 11-1-2005 when in village Kushalgarh, within the jurisdiction of Police Station, Piploda, it is alleged that the appellants committed the murder of Wajid Khan. The case of the prosecution, in brief, is that Wajid Khan had gone to the field to graze his buffaloes. When, at about 2. 30 p. m. , Waris Khan (PW 1) had gone to give food to him, he saw that accused shakir Khan and Usman Khan were belabouring him with Sticks stating that why he was bringing his buffaloes for grazing towards their field. Wazid Khan was protesting stating that he was not caused and damage to their field and why they were beating him but still they continued beating him stating that why he was, at all, coming towards their field. When Waris Khan (PW 1) tried to save him, they rushed at him with the result he had to withdraw. The incident was also witnessed by Nasir Khan (P W 2 ). Wazid Khan became unconscious. Waris Khan (PW 1) rushed to the village and brought the village Chowkidar and other persons of the village to the spot. The matter was reported to the Police and on arrival of the Police, Dehati Nalish (Ex. P/l) was loged. The Police prepared spot map and held inquest. Thereafter the body of the deceased was sent to the hospital for post-mortem. His body was received in the Hospital by Dr. Prakash upadhyay (PW 6) who was posted as Medical Officer in the Civil Hospital, jaora. He, on external examination of the body, found six injuries which were duly recorded in the autopsy report Ex. Thereafter the body of the deceased was sent to the hospital for post-mortem. His body was received in the Hospital by Dr. Prakash upadhyay (PW 6) who was posted as Medical Officer in the Civil Hospital, jaora. He, on external examination of the body, found six injuries which were duly recorded in the autopsy report Ex. P/9, According to the deposition of the doctor, the following injuries were found :- (1) One lacerated wound on the right leg with compound fracture of tibia and fibula; (2) One lacerated wound in the middle of the left leg with muscles and bones exposed; (3) Swelling of both forearms and fracture of right radius and ulna and left radius; (4) There were bruises on both knees; (5) There was swelling on the scrotal region; (6) Haemotoma with blunt injury on left fronto parietal region; In the opinion of the Doctor, the death was on account of the haemorrhagic shock due to multiple injuries and fracture of bones. ( 3. ) AFTER the completion of the investigation, the appellants were prosecuted and although they denied having committed any offence, on trial, they were convicted and sentenced as hereinabove stated. The appellants have thus filed this appeal against the said judgment. ( 4. ) LEARNED Counsel for the appellants, while not disputing the homicidal death of the deceased, submits that since the incident was without any premeditation, the weapon used was Lathi (staff) which the villagers normally carry and the injuries were not caused on any vital part except the head injury which was not contributory to the death of the deceased, the learned Judge committed a grave error in holding that the death was caused in the circumstances that it amounted to murder and the offence was punishable under section 302 of the IPC. Learned State Counsel, per contra, has submitted that as many as six injuries were caused and the deceased was mercilessly beaten. All bones in his hands and legs were fractured and assault was also made over his head resulting in heamotoma though he does not dispute that there was no fracture beneath the said injury caused in the parietal region. ( 5. All bones in his hands and legs were fractured and assault was also made over his head resulting in heamotoma though he does not dispute that there was no fracture beneath the said injury caused in the parietal region. ( 5. ) THE homicidal death having not been denied, the first question that arises as to what sanctity can be attached to the testimony of Waris Khan (PW1)insofar as he attributes complicity to the appellants in causing the injuries to the deceased. Waris Khan (PW 1) has deposed that his brother had taken the buffaloes for grazing. He had gone to give him meals at about 02. 30 in the afternoon and when he reached the place, he witnessed that the two accused usman and Shakeer, both brothers, were assaulting his brother with Sticks and his brother Wazid Khan was shouting for help. The accused were telling him as to why he was bringing his buffaloes towards their field and that they would not leave him. When he tried to save his brother, the accused persons rushed at him, but at that moment, Nasir s/o Himmat Khan arrived and the accused persons fled away. His brother fell down unconscious and died immediately. ( 6. ) WARIS Khan (PW 1) has further deposed that he rushed to the village and asked Hiralal Patidar to inform the Police. He brought Chowkidar and Fakir Mohammad to the place of the incident. The Police arrived and he lodged Dehati Nalish (Ex. P/l ). The Police prepared spot map and held inquest. ( 7. ) NASIR Khan (PW 2) has not supported the prosecution insofar as his being eye-witness to the incident is concerned and even Hussain Khan (PW 3), abid Khan (PW 4) and Hiralal (PW 5) have turned hostile. ( 8. ) FROM the testimony of Waris Khan (PWl)andhis report (Ex. P/l)promptly lodged and corroboration from the medical evidence as projected through Dr. Prakash Upadhyay (PW 6), there is not an iota of doubt that insofar as the injuries caused to the deceased are concerned, the two appellants were the authors of the same and the deceased had died on account of the said injuries. P/l)promptly lodged and corroboration from the medical evidence as projected through Dr. Prakash Upadhyay (PW 6), there is not an iota of doubt that insofar as the injuries caused to the deceased are concerned, the two appellants were the authors of the same and the deceased had died on account of the said injuries. The contention of the learned Counsel for the appellants, however, is that even if it is accepted that the injuries caused to the deceased by the two appellants in the manner attributed to them, it would not constitute an offence of murder punishable under Section 302 of the IPC. Learned Counsel contends that firstly it is not the case of the prosecution that there was any premeditation, the appellants allegedly caused injuries by means of Lathis (staff) which the villagers normally carry with them while going to their fields and lastly as per the prosecution case, the injuries were caused on hands and legs, except the solitary injury on the parietal region which was also subdural haemotoma without any fracture beneath. In the opinion of Dr. Prakash Upadhyay (PW6), the death was on account of the haemorrhage due to injuries, mainly fractures. Since the fractures were of tibia and fibula in both legs and ulna and radius in hand, it is not the injury in the parietal region which contributed to the death but only the injuries caused to the hands and legs. Under these circumstances, it cannot be inferred that the accused persons while causing injuries in the hands and legs, when it was also possible for them to cause injuries on vital parts, intended to cause death of the victim. Intention being, thus, absent, at the most, contends the learned Counsel, they can be attributed knowledge that by successive assault with Lathis (staff) even on lower parts of the body, death was likely in a remote way. ( 9. ) THOUGH it appears that from the parts chosen for causing injury and the weapon used, the accused did not intend to cause death of Wazid Khan, it is clear that the repeated blows by means of Lathi and the force applied, as evident from the consequence that ensued, fracture of almost all bones in the legs and hands, the accused intended to cause injury which was likely to cause death. Under these circumstances, the accused were guilty of the offence of culpable homicide though not amounting to murder, but punishable under Part I of Sec. 304 of the IPC i. e. , where the accused intend to cause an injury that is likely to cause death. We are, therefore, of the view that though the conviction of the appellants under Section 302 of the IPC is not sustainable, they are held guilty under Section 304 Part I thereof. ( 10. ) ACCORDINGLY, this appeal partly succeeds. The conviction of the appellants under Section 302 of the IPC and the sentence awarded by the Trial court is set aside and they are, instead, convicted under Section 304 Part I of the ipc and sentenced to rigorous imprisonment for 7 (seven) years and fine of rs. 1,000/ -. In default of payment of fine, the accused in default shal suffer further simple imprisonment of three months. Criminal Appeal partly allowed.