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Madhya Pradesh High Court · body

2009 DIGILAW 835 (MP)

Hariram v. State of M. P.

2009-07-21

RAKESH SAKSENA, S.A.NAQVI

body2009
JUDGMENT 1. Appellant has filed this appeal against the judgment dated 29.7.2000, passed by the Second Additional Sessions Judge, Seoni" in Sessions Trial No. 77/1999, convicting him under Section 302 read with Section 34 of the Indian Penal Code and sentencing him to imprisonment for life. 2. In short, the prosecution case is that on 1.6.1996 appellant and co-accused Radheshyam took lift in Truck Number U.P.-77-5811, which was being driven by Kedarnath Shukla. Ashok (deceased) was the second driver. Accused Hariram stretched his leg outside the window of the running truck, which was objected by Ashok. On this, there occurred an altercation between them. At Metewani Dhaba, truck was parked and all the persons alighted from the truck. When Ashok went to drink water, accused Hariram inflicted a blow on him by means of a bamboo stick. Accused Radheshyam gave fist blows to him. Ashok suffered injuries on his head and other parts of body. Kedarnath took Ashok to Police Station Kurai. Since Ashok was not able to speak, he lodged the report of the incident (Exh. P-6). A case under Section 302 read with Section 34 of the Indian Penal Code was registered against the accused persons. Ashok was sent for medical examination and treatment to Primary Health Centre, Kurai. He was thereafter referred to District Hospital, Seoni and ultimately to Medical College, Nagpur. ON 2.6.1996, at about 8.30 p.m. Ashok succumbed to injuries. 3. After investigation, charge-sheet was filed and the case was committed for trial. 4. During trial, appellant abjured his guilt and pleaded false implication. 5. Prosecution, to substantiate its case, examined nine witnesses. 6. Trial Court, relying mainly on the evidence of Ghanshyam (PW.2), Kedarnath Shukla (PW-8) Dr. S.S. Nafde (P.W. 1) and Dr. A.N. Kewalia (P.W. 3), held both the accused persons guilty and convicted and sentenced them as mentioned above. 7. Learned counsel for the appellant did not dispute the incident, however, submitted that from the evidence on record it could not have been held that appellant assaulted deceased with the intention to cause his death. The incident was sudden and had erupted on a trivial quarrel. In the course of sudden quarrel, appellant inflicted a blow by bamboo stick, as a result of which Ashok suffered head injury and died on next day of the occurrence. In these circumstances conviction of appellant under Section 302 of the Indian Penal Code was erroneous. The incident was sudden and had erupted on a trivial quarrel. In the course of sudden quarrel, appellant inflicted a blow by bamboo stick, as a result of which Ashok suffered head injury and died on next day of the occurrence. In these circumstances conviction of appellant under Section 302 of the Indian Penal Code was erroneous. He submitted that appellant has already served out sentence of about nine years. 8. Learned counsel for the State submitted that the finding of conviction of the appellant under Section 302 read with Section 34 of the Indian Penal Code was fully justified. 9. According to Ghanshyam (P.W. 2) and Kedarnath Shukla (P.W. 8), Kedarnath was taking the truck rrom Nagpur to Kanpur. Second driver Ashok and conductor Munna were also with him. From Khawas border accused Hariranl and Radheshyam with a woman and a girl boarded the truck. On way, Hariram stretched his leg outside the window. When Ashok objected to it, there occurred a wordy quarrel between them. Near Metewani, Kedamath stopped the truck and all the persons alighted for taking tea. Again there occurred an altercation and scuffle between Ashok and the accused persons. Suddenly, accused Radheshyam inflicted a blow by the handle of axe on the head of Ash ok. Hariram also inflicted blow on him. Kedarnath went to Police station, Kurai, and lodged the report (Exh. P- 6). Ashok was sent for medical examination and treatment to PHC Kurai, where Dr. S.S. Nafde (PW 1) examined his injuries. According to his report (Exh. P-l), he found one lacerated wound 2-1/2" x 1/4" on left parietal region of the skull. According to him, this injury was caused by hard and blunt object. He referred Ashok to District Hospital for X-ray examination and treatment. Ashok was then referred to Indira Gandhi Medical College, Nagpur, when he was admitted on 2.6.1996. However, in the night, about 8.30 p.m. he expired. On the post-mortem examination of his body, Dr. A.N. Kewalia (PW-3) detected as many as eight injuries. Two injuries were on left and right temporal region of skull; one was measuring 6 cm x 1 cm. and other 1 cm x 1 cm. Other injuries were abrasions on abdomen, arms, thigh and back. He also detected fracture on right panetal bone of his skull. There was sub-dural haemeatoma in the brain. In his opinion, the death was homicidal. and other 1 cm x 1 cm. Other injuries were abrasions on abdomen, arms, thigh and back. He also detected fracture on right panetal bone of his skull. There was sub-dural haemeatoma in the brain. In his opinion, the death was homicidal. Post-mortem report is Exh. P-2. 10. Other two witnesses Ashabai (PW-5) and Makku (PW-4) were also examined as eye-witnesses of the incident, but they did not support the case of the prosecution. Though Ghanshyam (PW-2) and Kedarnath (PW-8) were subjected to lengthy cross-examination but except some minor contradictions nothing could be elicited out to render their testimony unreliable. On scanning the evidence of aforesaid two eye-witnesses carefully, we find it established that in furtherance of common intention appellant caused injury to Ashok on his head which resulted into his death. 11. The next question before us is as to what offence in the facts and circumstances of the case is made out against the appellant. Ghanshyam (PW -2) and Kedarnath (PW-8) categorically stated that the incident occurred suddenly after an altercation when deceased objected to Hariram that he should not stretch his leg out of the window in running truck. Accused persons were not known to deceased from before. The incident of assault occurred at the spur of moment in the sudden quarrel. There was no evidence to indicate that the assault was premeditated. However, since the accused wielded stick and inflicted its blow on the head of deceased, it could be inferred that he knew that he was likely to cause his death. In these circumstances, conviction of appellant under Section 302 read with Section 34 of the Indian Penal Code was not justified. He was liable to be punished only under Section 304-II of the Indian Penal Code. 12. For the foregoing reasons, conviction and sentences of the appellant under Section 302 read with Section 34 of the Indian Penal Code is set aside and instead he is convicted under Section 304- II of the Indian Penal Code and sentenced to imprisonment already undergone by him, which comes to be about rune years. 13. Appellant, who is in custody, shall be released forthwith, if not required in any other case. 14. Appeal partly allowed.