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Madhya Pradesh High Court · body

2011 DIGILAW 1392 (MP)

Hariram v. State of M. P.

2011-12-12

R.C.MISHRA

body2011
Judgment This appeal has been preferred against the judgment-dated 25.1.1996 passed by Additional Sessions Judge, Gadarwara Distt. Narsinghpur in S.T. No.20/1994, whereby the appellants, though charged with the offences under Sections 147, 302 and 323 or in the alternative 302 and 323 read with 149 of the IPC, were convicted and sentenced as under - No. & name of the appellant 1. Hariram (hereinafter referred to as ‘A’) 2. Bhav Singh 3. Bharatlal (for short ‘A2’ & Convicted under Section 304 Part I of the Indian Penal Code, 1860 304 Part I read with 34 of the Indian Penal Code, 1860 Sentenced to Undergo R.I. for 10 years and fine of Rs.2000/-and in default, to suffer R.I. for 2 years. Undergo R.I. for 10 years and fine of Rs.2000/-and in default to suffer R.I. for 2 A3' respectively) years. Criminal Appeal No.227/1996 For the reasons recorded in the judgment, all the three co-accused namely Damodar, son of A1 & brother of A3 and Jeevgnlal and Pritam, both sons of A2 and nephews of Al, were acquitted of the charges. 2. Prosecution story, in short, may be narrated thus - (a) Agricultural lands belonging to the appellants and the complainant party were contiguously situated in village Bildhari. (b) On 25.11.1993 at about 9:00 a.m. in the Village, finding that the appellants and the co-accused, armed with lathies, were causing damage to embankment between the fields, Narayan Singh (since deceased) raised objection. In the course of altercation that ensued, the appellants and their companions jointly assaulted Narayan Singh and his brother Parvat Singh (PW2) with lathies. Sustaining injuries on head, Narayan Singh fell down and rendered unconscious. He was immediately taken to Police Station Tendukheda. Rajesh Tiwari (PW9), the SHO, registered a case under Sections 147,148, 294, 307 and 447 of the IPC against the appellants and the co-accused (since acquitted) upon the FIR (Ex.P-3) lodged by Parvat Singh. (c) Both the injured viz. Narayan Singh and Parvat Singh were sent to PHC, Tendukheda where they were examined by Dr. Ashok Kumar Jain (PW8). The medical expert advised X-ray examination of skull of Narayan Singh. Radiologist Dr. S.K. Maheshwari (PW1) noticed fractures on left parietal & temporal bones of Narayan Singh. On the same day, at about 8:35 p.m., Narayan Singh succumbed to the injuries. Accordingly, the case was converted into one under Section 302 of the IPC. Ashok Kumar Jain (PW8). The medical expert advised X-ray examination of skull of Narayan Singh. Radiologist Dr. S.K. Maheshwari (PW1) noticed fractures on left parietal & temporal bones of Narayan Singh. On the same day, at about 8:35 p.m., Narayan Singh succumbed to the injuries. Accordingly, the case was converted into one under Section 302 of the IPC. Criminal Appeal No.227/1996 (d) After inquest proceedings, the dead body was sent for post-mortem examination. Dr. C.S. Shiv (PW5) opined that cause of Narayan Singh's death was coma due to sub-dural and extra-dural haemorrhage as a consequence of injury to the brain. According to him, the injury to the skull was sufficient in the ordinary course of nature to cause death. (e) During investigation, Sub Inspector Rajesh Tiwari (PW9) inspected the spot and seized control & bloodstained soil therefrom. He also seized bloodstained clothes of the deceased. The appellants and co-accused were apprehended and at their instance, respective weapons of offence viz. lathies were recovered. 3. The appellants abjured the guilt and pleaded false implication due to prevailing enmity in view of dispute as to land. In the examination, under Section 313 of the Code of Criminal Procedure, A1 and A2 specifically raised plea of private defence and also put written statements to the effect that it was the complainant party that was the aggressor. According to them, - (i) Narayan Singh did ask A1 as to why he was digging the embankment and upon answer that he was only cleaning the embankment from his side, Narayan Singh assaulted them and Parvat Singh had also joined in the assault,. (ii) Had they not saved themselves, both Narayan Singh and Parvat Singh would have killed them. 4. Legality and propriety of the convictions have been challenged mainly on the following grounds - (i) Same set of evidence that was not found sufficient to substantiate the charges against the co-accused could not have formed basis of conviction of the appellants, particularly A3 as there is not an iota of evidence to suggest that he had also shared a common intention to kill Narayan Singh. (ii) Existence of injuries on the persons of A1 and A2 clearly established probability of the defence. (iii) In the light of admission made by Autopsy Surgeon Dr. (ii) Existence of injuries on the persons of A1 and A2 clearly established probability of the defence. (iii) In the light of admission made by Autopsy Surgeon Dr. C.S. Shiv (PW5) (in paragraph-8 of his cross-examination) that the head injury received by Narayan Singh was likely to cause death, the appellants ought to have been found guilty of the offence under Part II of Section 304 of the IPC. In response, learned Government Advocate, while inviting attention to the corresponding incriminating pieces of ocular evidence and a categorical opinion recorded in the post-mortem report (Ex.P-S) as to nature of head injury, has submitted that the convictions are well-merited. 5. In order to appreciate the merits of the rival contentions in a proper perspective, it is necessary to first advert to the medical evidence available on record. 6. Dr. Ashok Kumar Jain (PW8) proved existence of the following injuries on the person of Narayan Singh (as described in the report [Ex.P-20]) (i) Contusion at left eye ball and left orbital region. (ii) Bleeding from left ear. (iii) Contusion at left temporal region 6 cm in diameter. On the person of Parvat Singh (as described in the report [Ex.P-22]) (i) Lacerated wound at right side of vault of scalp and left parietal part of scalp, size of both 2 cm x ½ cm x ½ cm (ii) Abrasion at right humerus 3 cm x 1 cm. (iii) Contusion at back of upper part of right forearm 6 cm x 2cm. (iv) Abrasion at right shoulder 3 cm x 1 cm. on the person of Hariram (as described in the report [Ex.D-3]) Abrasion present at right ear pinna 1 cm x ½ cm. Black scab present over it.