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Madhya Pradesh High Court · body

2007 DIGILAW 529 (MP)

GANJA v. STATE OF M P

2007-05-04

MANJUSHA P.NAMJOSHI, S.L.KOCHAR

body2007
Judgment ( 1. ) THIS appeal has been directed against the impugned judgment of conviction and sentence passed by learned Third Additional Sessions Judge, khargone, District West Nimad in Sessions Trial No. 337/01, dated 8th March, 2002 thereby convicting and sentencing the appellants as mentioned here in below:- ( 2. ) ACCORDING to the prosecution case, 6n 5-6-2001, in the noon at 12 oclock in Village Badiya, complainant party, appellants and members of their party assembled in a Village Panchayat for resolving the dispute which arose amongst children of members of both the parties on account of fishing in the tank. Appellants and complainant party were not having any kind of previous enmity. In the Panchayat Jalu (P. W. 4) made suggestion that complainant party shall pay Rs. 150/- to the accused party oh which accused party did not agree and demanded Rs. 300/- for settling the dispute. The complainant party told that dispute was amongst the children. Therefore, they would not pay Rs. 300/- and both parties were making their proposal during which appellants all of a sudden with acquitted co-accused persons started pelting stones at the complainant party and appellant No. 1 Ganja shot an arrow which pierced at the right side of the chest of deceased Hagariya. Appellant No. 3 Bhayla also shot arrow which caused injury to Kishan (P. W. 6) on his right leg. Appellant No. 2 Satriya shot arrow causing injury on left shoulder of Soorsingh alias Suresh (P. W. 7 ). Bhoorsingh (P. W. 9) also sustained injury by stone pelted by appellant Bhayla. The deceased took out arrow from his chest, thereafter, injured persons were taken to the hospital, but on the way Hagriya died. Incident was reported by laxman (P. W. 3) in the Police Station, which was recorded by B. S. Sisodiya vide exh. P-9. Dr. R. Suliya (P. W. 2) conducted post-mortem on the bqdy of deceased Hagriya. Post-mortem report is Exh. P-9. Injured Kishan (P. W. 6), soorsingh alias Suresh (P. W. 7) and Bhoorsingh (P. W. 9) were also medically examined by Dr. R. Suliya (P. W. 2) and he found simple injuries on the persons of all the 3 witnesses. In all 11 persons were arrested and from their possession bows and arrows were said to have been seized. P-9. Injured Kishan (P. W. 6), soorsingh alias Suresh (P. W. 7) and Bhoorsingh (P. W. 9) were also medically examined by Dr. R. Suliya (P. W. 2) and he found simple injuries on the persons of all the 3 witnesses. In all 11 persons were arrested and from their possession bows and arrows were said to have been seized. After completion of investigation accused persons were charge-sheeted for commission of offence under Sections 148, 302/149, 323/149, 324/149. Accused persons refuted the charges and in alternative they have submitted that complainant party started shooting arrow and they have been falsely implicated. They have not examined any witness in defence. Learned Trial Court while acquitting the 8 accused persons convicted the appellants as mentioned hereinabove. ( 3. ) THE learned Counsel for the appellants has canvassed only point for consideration that incident occurred all of a sudden when Panchayat was going on and both the parties were sitting to resolve the dispute of quarrel between j children of both the parties, who on earlier day had entered into quarrel at the tank while fishing, therefore, the appellants were not having common intention to commit murder of Hagriya and appellants would be responsible for their individual act. Learned Counsel has also submitted that against appellant Ganja, who caused only injury to deceased Hagriya by arrow shot, at the most offence under Section 304 Part I of the IPC would be made out because in a sudden incident without pre-meditation he shot one arrow, which pierced at the chest of the deceased resulting into his death. ( 4. ) ON the other hand, the learned Counsel for the State has supported the impugned judgment and finding of the Trial Court. He has also submitted that use of bow and arrow itself is sufficient to establish the intention of the appellants for causing death of deceased Hagriya. ( 5. ) HAVING heard the learned Counsel for the patties and after perusing the entire record, we find substance in the submission of the learned Counsel for the appellants. By own saying by the prosecution there was no previous enmity between the appellants and complainant party and dispute arose on account of quarrel between the children and to resolve this quarrel on the date, time and place of incident Village Panchayat was being convened. By own saying by the prosecution there was no previous enmity between the appellants and complainant party and dispute arose on account of quarrel between the children and to resolve this quarrel on the date, time and place of incident Village Panchayat was being convened. In the said Panchayat members of both the groups as well as other villagers were present and deliberations were going on regarding settlement of the dispute by making payment of Rs. 152/- to the aggrieved party and aggrieved party/appellants were demanding Rs. 300/ -. This shows that upto that time presence of the members of both the parties and other villagers was not with an intention to commit any kind of offence. When talk was going on regarding payment of money, the quarrel flared up all of a sudden and in the said quarrel first there was a pelting of stone by so many persons and thereafter, appellants shot arrows. Hence it would be very difficult to say that the appellants were having common intention for commission of murder of Hagriya and in furtherance of the said common intention appellant Ganja shot arrow causing injury on the left side of the chest of the deceased. None of the eye-witnesses has stated that appellant Ganja aimed the arrow at the left side of the chest of Hagriya and thereafter shot it. The ocular evidence on this point is that Ganja shot an arrow, which pierced at the left side of the chest. Same is the statement of other injured persons against the appellants. The arrow which was shot by appellant Nos. 2 and 3, did not hit at any vital part of the body of injured witnesses. This shows that it was the misfortune of deceased as well as the appellant No. 1 whose arrow pierced at left side of the chest of deceased resulting into his death. Laxman (P. W. 3) has admitted in paragraph 9 of his deposition that in their community, ordinarily whenever person is going out of his house, uses to take bow and arrow with him. This is the general phenomena in tribal area of Dhar and Jhabua Districts. The tribals are normally moving outside the house having bow and arrow or falia. Laxman (P. W. 3) has admitted in paragraph 9 of his deposition that in their community, ordinarily whenever person is going out of his house, uses to take bow and arrow with him. This is the general phenomena in tribal area of Dhar and Jhabua Districts. The tribals are normally moving outside the house having bow and arrow or falia. In this view of the matter on the basis of the fact that appellants were having bow and arrow,: cannot be said that they had intention to commit murder of deceased Hagriya and formed common intention, thereafter in furtherance of the same appellant no. 1 shot arrow at the left side of the chest of the deceased and deceased succumbed to the injury. The incident occurred suddenly when talk for settlement was going on in a Panchayat. Therefore, the appellants, who caused the injury would be responsible for their individual act. Appellant Ganja shot an arrow, which pierced at the left side of the chest of the deceased Hagriya and which is proved fatal. Because of this act, looking to the surrounding circumstances, it cannot be said that he shot an arrow with an intention to commit murder of deceased Hagriya, but at the same time, he can be attributed with the act by which death was caused was done knowingly that causing of such bodily injury would be likely to cause death. Therefore, the act of the appellant would fall under Section 304 Part I of the IPC. The other appellants Satriya and bhayla have also caused arrow shot injury, therefore, they would be liable for their individual act of causing simple injuries to Kishan and Soorsingh punishable under Section 324 of the IPC. There is evidence against Bhayla for causing simple injury by pelting stone to Bhoorsingh, therefore, he would also be responsible for commission of offence under Section 323 of the IPC. ( 6. ) IN the result, this appealis allowed in part. Conviction and sentence of the appellant No. 1 Ganja under Sections 302, 324/34 and 323/34 of the IPC are hereby set aside. Instead thereof he is convicted under Section 304 Part I of the IPC and is sentenced to RI for 10 years and fine of Rs. 1,000/-, in default of payment of fine additional R. I. for six months. Conviction and sentence of the appellant No. 1 Ganja under Sections 302, 324/34 and 323/34 of the IPC are hereby set aside. Instead thereof he is convicted under Section 304 Part I of the IPC and is sentenced to RI for 10 years and fine of Rs. 1,000/-, in default of payment of fine additional R. I. for six months. Conviction of appellant No. 2 satriya under Sections 302/34,323/34 and 324/34 of the IPC are also hereby set aside, but he is convicted only under Section 324 of the IPC and is sentenced to the period already undergone (7 months and 10 days) and fine of Rs. 5,000/-, in default of payment of fine he shall suffer additional R. I. for one month. Conviction of appellant No. 3 Bhayla under Section 302/34 and 324/34 of the ipc are also hereby set aside. He is convicted under Sections 324 and 323 of the ipc and is sentenced on both counts to the period already undergone (6 months 22 days) and fine of Rs. 1,000/-, in default of payment of fine, he shall suffer additional R. I. for 3 months. Appellant Nos. 2 and 3 are on bail. They are directed to appear before the learned Trial Court on 9th July, 2007 and deposit the fine amount, if not deposited. The office is directed to send copy of this judgment along with the record to the Trial Court for compliance. Criminal Appeal partly allowed.