Chhidamilal and Others vs State of M.P.

A.S. Anand, C.J.-This order will dispose of four appeals - Criminal Appeal No. 707 of 1992 filed on behalf of seven appellants, Criminal Appeals Nos. 708-09 of 1992 filed on behalf of five appellants, Criminal Appeal No. 435 of 1993 filed by one appellant and Criminal Appeal No. 800 of 1999 filed by the complainant (Appellant 6 in Criminal Appeal No. 707 of 1992) against acquittal of Bhagwat, Respondent 2. All these appeals are by special leave.

Shorn of all the details, we may only notice that as a result of some dispute over possession of land which originally belonged to one Deochand (absconding accused), an occurrence took place on 22-7-1983. According to the appellants they were given possession of the land measuring 4 kanals by Deochand after executing a registered sale deed whereas the case of the complainant party is that they were already in possession of the land and the appellants came to forcibly dispossess them. The appellants in the first cited three appeals were charged for offences under Sections 302/149 IPC and 148 IPC. The trial court convicted 13 appellants for offences under Sections 302/149 and 148 IPC and sentenced them to undergo imprisonment for life for an offence under Sections 302/149 IPC and to a sentence of one year''s RI for an offence under Section 148 IPC. The substantive sentences were directed to run concurrently. The case arose out of the murder of Gajraj Singh. Against their conviction and sentence, the appellants filed appeals in the High Court but without any success. In the cross-case out of which Criminal Appeal No. 800 of 1999 arises, the High Court intervened and acquitted Bhagwat, who had been convicted by the trial court for murder of Narain, belonging to the accused party.

The trial court as well as the High Court have carefully analysed the evidence led by the prosecution as well as the defence. The appreciation of evidence by both the courts appears to us to be proper and does not suffer from any infirmity whatsoever. Faced with this situation, Mr Sushil Kumar, learned Senior Counsel appearing for the appellants in the first-cited three appeals drew our attention to the medical evidence of Dr M.P. Vyas, PW 3 who had performed post-mortem on the dead body of Gajraj Singh. According to Dr Vyas Injury 2 on the deceased was caused by some sharp-edged weapon while Injury 9 was caused on him by a hard and blunt weapon like lathi. These two injuries, it was stated, were enough in the ordinary course of nature to cause death. The witnesses went on to say that even one of these injuries was enough to cause death in the ordinary course of nature and that all other injuries on the deceased were simple in nature. In further examination, the witness admitted that except Injuries 2 and 9, all other injuries, even collectively, were not enough in the ordinary course of nature to cause death. None of the injuries suffered by Gajraj Singh, the deceased was on the vital part of his body.

In vain have we searched through the evidence led by the prosecution to find the author of either of the two injuries i.e. Injury 2 or Injury 9. It is the prosecution case that while some of the appellants were armed with lathis, one appellant had a barchi, another had an axe and the third a ballam. Other appellants were empty-handed. None of the witnesses has been able to say as to who caused which injury and in particular, as to who caused Injury 2 or 9 to the deceased Gajraj Singh. Injury 2 was an incised wound over the left upper arm while Injury 9 is a contusion over left mammary region, under which the fourth, fifth and sixth ribs were found fractured.

Our independent analysis of the evidence on the record shows that the appellants had formed an unlawful assembly with the object of taking forcible possession of the land and if necessary, to give beating to the complainant party to achieve their object. During this fight, Narain, belonging to the accused party received a fatal blow at the hands of Gajraj Singh, the deceased, whereafter the complainant party was assaulted and Gajraj Singh received injuries to which he later on succumbed.

Looking to the manner in which the assault took place over the land, which was in the possession of the complainant party, it appears to us that the appellants did not intend to cause the murder of deceased Gajraj Singh. The offence committed by the appellants in the established facts and circumstances of the case, resulting in the death of Gajraj Singh was only culpable homicide not amounting to murder. The appellants can definitely be clothed with the knowledge that the injuries caused by them were likely to cause death or such bodily injury as was likely to cause the death of Gajraj Singh. The offence under the circumstances, would fall under Sections 304 (Part II)/149 IPC and not under Sections 302/149 IPC. We, therefore, accept these three appeals partly and hold that the offence committed by the 13 appellants is not one under Sections 302/149 IPC but one under Sections 304 (Part II)/149 IPC. So far as the offence under Section 148 IPC is concerned, that has been proved to have been committed by the appellants beyond any reasonable doubt and we maintain the conviction and sentence of the 13 appellants on that count.

Coming now to the question of sentence for the offence under Sections 304 Part II/149 IPC, in our opinion, a sentence of eight years'' RI would meet the ends of justice. We make an order accordingly.

The appellants in the first-cited three appeals are on bail. Their bail bonds are cancelled. They shall be taken into custody to undergo the remaining part of the sentence, if any.

So far as Criminal Appeal No. 800 of 1999 is concerned, after hearing Mr Vinoo Bhagat, we do not find any reason to interfere with the impugned judgment. The same is hereby dismissed.