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2009 DIGILAW 725 (MP)

VISHNU KOL v. STATE OF MADHYA PRADESH

2009-06-24

R.S.GARG, U.C.MAHESHWARI

body2009
Judgment ( 1. ) THE appellants being aggrieved by the judgment dated 29. 7. 2006 passed in S. T. No. 26/04, by the learned 2nd Additional Sessions judge (Fast Track Court), Katni convicting each of the appellants under section 302/34 IPC sentencing them to undergo RI for life and pay fine of rs. 1,000/- and under Section 323/34 IPC sentencing them to undergo RI for one year, in default of payment of fine to undergo six months further simple imprisonment, have filed this appeal. ( 2. ) THE prosecution case in brief as comes out, from the mouth of p. W. 1 Darbarilal is that on 1. 6. 2003 deceased Daduram was at a road side liquor shop, he had consumed a good amount of liquor and was intoxicated, when P. W. 1 Darbarilal was awaiting a bus, present accused and absconded accused came in a Rikshaw, accused Lallu was driving the Rikshaw and other accused were sitting in the Rikshaw, deceased Dadu Kol all of a sudden abused the inmates of Rikshaw with the name of mother. Rikshaw was stopped, the accused persons alighted from the same, thrashed the deceased by means of kicks, fisticuffs and belts, when P. W. 1 Darbarilal tried to intervene and made a request, he was also beaten. Thereafter Dadukol and Darbarilal were lifted from the spot and were thrown near a tree at tikarwara. After regaining consciousness Darbarilal came to Police and lodged the report. After receiving the report the Police came in action, referred the injured for examination and repair of his injuries, the dead body of the deceased was also recovered and the same was sent for postmortem. After receiving the injury report and postmortem report statements of the witnesses were recorded and after preparation of the Panchnama the accused persons were subjected to trial. ( 3. ) ON conclusion of trial the accused appellants have been convicted and sentenced as referred to above. It is however to be noted that other accused namely Lalla Yadav and Mannu Koll are still absconding. ( 4. ) LEARNED counsel for the appellants after taking us through the statements of P. W. 1 Darbarilal, the injured eyewitness and P. W. 2 dr. It is however to be noted that other accused namely Lalla Yadav and Mannu Koll are still absconding. ( 4. ) LEARNED counsel for the appellants after taking us through the statements of P. W. 1 Darbarilal, the injured eyewitness and P. W. 2 dr. P. D. Soni, who conducted the autopsy submitted that it would clearly appear from the record that, no weapons were used, the incident took place on the spur of the moment and that too on a provocation given by the deceased. It is submitted that the accused persons had no inimical terms with the deceased and on the said date they were simply passing from a particular area and in fact the deceased abused them. It is submitted by her that the accused persons could not be convicted under Section 302 IPC. ( 5. ) SHRI S. K. Rai, learned counsel for the respondent/ State on the other hand submitted that from the postmortem report it would clearly appear that the deceased had suffered a fracture in his jaw and fracture of the right parietal bone. It is submitted by him that the manner in which the beating was given would clearly show the intention of the accused persons. ( 6. ) WE have heard the parties at length and have gone through the record. ( 7. ) FROM the statements of P. W. 1 Darbarilal and from undisputed fact, it would clearly appear that the deceased Daduram had consumed the good quantity of liquor, he was intoxicated and when the Rikshaw was passing through, he abused the inmates of Rikshaw. It appears that because of hurling of the abuse or being provoked by said abuse the accused persons stopped the Rikshaw and gave good beating to the deceased. It is not in dispute before us that except belt, no other weapon was used. It has also come on the record that the deceased was beaten by kicks and fisticuffs. From the evidence it does not appear that the accused persons came out with some weapons, they had some intention to commit murder or they had caused any bodily injury with the knowledge that in every likelihood the deceased was to die. In our opinion the action of the accused person can at best be considered to be one falling under Section 304-II IPC. ( 8. In our opinion the action of the accused person can at best be considered to be one falling under Section 304-II IPC. ( 8. ) TAKING into consideration the totality of the circumstance, we hold that the learned Court below was justified in convicting the appellant for causing the injuries to the deceased but erred in convicting the appellants under Section 302 IPC. ( 9. ) THE appellants are acquitted of charges punishable under section 302/34 IPC, instead they are convicted under Section 304-II r/w 34 ipc. They are awarded five years RI and are directed to pay fine of rs. 2,000/- each. On recovery of fine the entire amount shall be given to the dependents/ successors of the deceased. In default of payment of fine each of the accused shall undergo RI for three months. The conviction of the appellants under Section 323/34 IPC is maintained. The accused persons are in jail, they be released after undergoing the sentence.