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Madhya Pradesh High Court · body

2007 DIGILAW 986 (MP)

Ganesh Prasad v. State of M. P.

2007-09-11

A.K.MISHRA, S.A.NAQVI

body2007
JUDGMENT Mishra, J. -- 1. The appeals have been preferred by the appellants being aggrieved by their conviction under section 302/34 of IPC and sentence of life imprisonment imposed by Sessions Judge, Sagar as per judgment and order dated 30th November, 1998 passed in ST No. 1851 98. 2. The prosecution case; in brief, is that on 14.3.1998 accused Sunder Ahirwar and Ganesh Ahirwar came to the hotel of Pooran Singh and asked for the glasses in order to consume liquor. At that time Arun (PW 5), Sitaram Yadav (PW 10) and Rajkumar (PW 9) were also at the hotel. Pooran Singh declined to give them the glasses, on that Ganesh Ahirwar inflicted lathi injury on Pooran Singh which fell near right eye and Sunder Ahirwar inflicted injury with iron rod on the left side of head of Pooran Singh. Arun (PW 5) went to lodge report of the incident. The report (Ex. D-1) was lodged at P.S. Motinagar situated at 2 kms. away. Dr. R.D. Nanoriya (PW 1) examined Pooran Singh and prepared MLC. He found two injuries. Autopsy was performed by Dr. Arun Saraf (PW 2). He found 3 injuries on the person of the deceased. One injury was found near right eye, one near back side of head and third on the shoulder in the form of abrasion. It was the day of Holi festival. Police conducted the investigation. Pooran Singh died on the same day. On the basis of information at the behest of accused Sunder an iron rod was seized and at the instance of accused Ganesh a lathi was seized. The clothes etc. were also seized. 3. The accused abjured their guilt and contended that it was Ganesh S/o Darai who had inflicted the injury on the deceased, they were falsely implicated in the case. Aggrieved by the conviction and sentence imposed upon the accused-appellants these appeals have been preferred by them. 4. Ms. Durgesh Gupta, learned counsel for the appellants, has submitted that incident has taken place on the spur of moment. The accused are Harizans. On that ground glasses were not given to them, they were asked to go away from the hotel and they were insulted. On that single blow was caused on the head of deceased by Sunder Ahirwar. The injury caused by Ganesh Ahirwar was also quite simple near the eye. The accused are Harizans. On that ground glasses were not given to them, they were asked to go away from the hotel and they were insulted. On that single blow was caused on the head of deceased by Sunder Ahirwar. The injury caused by Ganesh Ahirwar was also quite simple near the eye. Other injury found on the shoulder was also abrasion. The intention of appellants was not to cause the death. They were provoked by deceased Pooran Singh as they were insulted. Even the glasses were not handed over to them. There was no intention shared by accused persons. Accused Sunder Ahirwar by now has remained in jail for about 9 years. He has not been released on bail after the date of conviction on 30.11.1998. Other accused Ganesh Ahirwar remained in jail for about 8 1/2 months during the course of trial and thereafter he was released on bail as per order dated 29.6.2001, thus, for the injuries caused by them the sentence undergone be held to be sufficient. 5. Shri T.K. Modh, learned Deputy Advocate General appearing on behalf of respondent-State has submitted that it is a case where accused Sunder had dealt with blow on the head of deceased resulting into the fracture of bones. Two simple injuries were caused by accused Ganesh. They shared common intention, thus, their conviction u/s. 302 of IPC has been rightly recorded by the court-below. No case for interference in these appeals is made out. 6. We find from the record that incident has taken place on the spur of moment. From the prosecution case it appears that both the accused came to the hotel and asked for glasses in order to consume liquor and it was Holi festival. There was refusal to hand over the glasses to them and they were asked to sit at the distance from the hotel by the deceased Pooran Singh. In the cross-examination of Arun (PW 5) in para 10 it was suggested that they were not washing of the glasses of Harizans though the suggestion was denied by the witness but it appears that there was refusal to give the glasses to the accused on the basis of their being Harizans and they were asked to sit at distance from hotel. It was mentioned in the FIR (Ex. It was mentioned in the FIR (Ex. D-l) lodged by Arun (PW 5) son of deceased that initially the accused had asked for handing over of two glasses, his father has refused to hand over the glasses to the accused, thus, we find that on the basis of their caste the accused were sought to be discriminated. It is not uncommon and is the most unfortunate state of affairs as happened in the instant case that still such kind of practice and behaviour is meted out on the basis of persons being Harizans inspite of lapse of 60 years of independence and despite of every effort made to remove the disparity it has not been eradicated so far. Thus, there was clear and sudden provocation caused due to refusal of deceased to hand over the glasses insulting them on the basis of their caste. This was an act of insult to the human dignity indicated by the act of the deceased. Harizans have equal right to use same glasses which are kept for others. 7. As per prosecution case single blow had been dealt with by accused Sunder with iron rod on the head of deceased. Arun (PW 5) s/o deceased Pooran Singh has stated that both the accused persons came to the hotel of his father, they asked for glasses. On refusal accused Sunder brought iron rod and accused Ganesh brought lathi from their house, they inflicted injury to his father. Nandu s/o deceased Pooran Singh (PW 6) has not supported the aforesaid version of going back to the house. From the version of Nandu as well as from the FIR (Ex. D-1) lodged by Arun (PW 5) it becomes clear that the accused did not go back to the house to bring rodllathi. On the spur of moment incident has taken place as stated by Nandu s/o Pooran Singh (PW 6). Rajkumar (PW 9) and Sitaram (PW 10) did not support the prosecution case. It is apparent from statements of PW 5 and PW 6 that there was no common intention shared by the accused persons in the facts situation of the instant case. There was no pre-meeting of mind. Rajkumar (PW 9) and Sitaram (PW 10) did not support the prosecution case. It is apparent from statements of PW 5 and PW 6 that there was no common intention shared by the accused persons in the facts situation of the instant case. There was no pre-meeting of mind. All of a sudden the incident has taken place as the accused persons were insulted, however, it appears that accused Sunder had caused the injury on the head knowing fully well the consequences, however, he did not intend to cause the death of Pooran Singh. In our opinion, accused Sunder is liable to be convicted for commission of offence u/s. 304-II of IPC, as we have come to the conclusion in the peculiar facts and circumstances of the instant case and from the statements of Arun (PW 5) and Nandu (PW 6) that accused did not share the common intention, we convict the appellant Ganesh for common of offence u/s. 323 of IPC and sentence him to one year RI which sentence he has already undergone. With respect to accused Sunder, in our opinion, the period already undergone by him of approximately 9 years would be suffice. 8. Resultantly, appeals are partly allowed. The bail bond of appellant Ganesh is discharged. We direct that appellant Sunder be released forthwith if he is not required in any other offence. The order passed by the Court below with respect to disposal of property is hereby affirmed.