Jagdish and Laxman vs State of Madhya Pradesh

Hon''ble Shri Justice, Anil Kumar Sharma

Appellants have filed this appeal u/s 374 of the Indian Penal Code against judgment dated 04.10.1997 passed in Sessions Trial No.14/1996 by learned Additional Sessions Judge, Sardarpur, District Dhar (MP), whereby appellant No.1 Jagdish has been convicted for the offence punishable under Sections 304 Part-II / 34 and 323 of the Indian Penal Code and sentenced to undergo simple imprisonment for seven years with fine of Rs.500/-for the offence punishable u/s 304-II of the IPC and simple imprisonment for six months for the offence punishable u/s 323 IPC and appellant No.2 Laxman has been convicted for the offence punishable u/s 304 Part II of the IPC and sentenced to undergo simple imprisonment for seven years with fine of Rs.500/ and he has also been convicted for the offence punishable u/s 323/34 IPC and sentenced to undergo simple imprisonment for six months, with default stipulation. Brief facts of the case are that on 28.08.1995 at about 06.00 PM, somebody has taken the cotton crop of complainant Nar Singh; for that Vishnu son of complainant Nar Singh made allegation on appellant Jagdish. It is alleged that appellant Jagdish inflicted lathi blow on the shoulder of Vishnu, when complainant Nar Singh came to intervene, it is alleged that appellant Laxman inflicted Farsi blow on the head of Nar Singh, which resulted in his death. It is further alleged that accused Gangaram has also inflicted lathi blow on Nar Singh and co-accused Mangilal Banjara abused them and inflicted kick blow on his back. On report of complainant, First Information Report Ex. P/6 has been registered and challan has been filed against four accused persons. Learned trial Court, after trial of the accused for the offence punishable under Sections 302 in alternative 302/34, 307 and 323 of the Indian Penal Code, acquitted accused Gangaram & Mangilal Banjara and convicted & sentenced appellants Jagdish and Laxman by the impugned judgment, as mentioned in paragraph No.1 of the judgment.

Being aggrieved by the impugned judgment, appellants have filed this appeal on the ground that learned trial Court is not justified in convicting appellants, in absence of injury by sharp weapon Farsi on the head of victim.

Only point for consideration in this appeal is whether learned trial Court is justified in convicting appellants by the impugned judgment.

Learned counsel for the appellants has drawn attention towards the evidence of Dr. O.P. Parmar (PW-2), who has found one lacerated contused wound behind the head of Nar Singh and another contusion in the middle of both the shoulders. This witness has found simple injuries on body of Lalu and Vishnu also. In cross-examination, he has admitted that on the same day, he has examined accused Jagdish and Laxman and found two contusions on the body of Jagdish; and one cut lacerated wound and one bruise on the body of Laxman. Learned counsel for the appellants has further drawn attention towards statement of Vishnu (PW-3), who in his cross-examination admitted that when he reached for lodging report at Rajod Police Station, appellants have already gone for lodging report there, but he told ignorance about injuries sustained by the appellants and medical examination of the appellants. He has further admitted that Jagdish and Laxman are the sons of elder brother of his father. Learned counsel for the appellants has further drawn attention towards the statement of Lalu (PW-4), who has stated that Jagdish and Laxman inflicted lathth blows on the head of his father, while Vishnu (PW-3) has stated that Laxman inflicted Farsi blow on the head of his father.

Learned counsel for the appellants has further drawn attention towards the statement of Daula (PW-6), who reached on the spot after the incident and stated that he has not seen any injury over the body of Vishnu and Lalu. This witness has not been declared as hostile.

ASI Kamal Singh Gehlot (PW-7) has admitted that case was also registered against Vishnu and Lalu on report of appellants. Learned counsel for appellants has cited judgment of this High Court in the matter of Bapu @ Bapulal & others v. State of Madhya Pradesh through Police Station Ingoriya reported in 2012 Criminal Law Reporter (MP) 417, in which it has been held that PW-3 who has stated that accused dealt Axe blow on the head of the deceased, but no injury of Axe was found, involvement of accused is doubtful. Dying Declaration is vague and of general character. Conviction of the appellants for the offence punishable u/s 148, 302/149 IPC is set aside and they are convicted for the offence punishable u/s 323/149 IPC.

Learned counsel for the appellants has also cited judgment of Hon''ble Apex Court in the matter of Dinesh & another v. State of Haryana reported in JT 2001 (10) Supreme Court 144, in which it has been held that out of four injuries sustained by the victim, Injury No.1 and 4 are possible by fall; Injury No.2 and 3 by sharp edged weapon. Prosecution witnesses, however, stated that all the three accused assaulted; one out of two sons giving ballam blow and thrusting way, which was not corroborated by the medical evidence. PW-8 also deposed assault by him, but no injury found on his body; therefore, PW-6 doubted having seen the incident. Therefore, it has been held that in absence of corroboration by medical evidence, it is not possible to find exact number of assailants. Two sons (appellants) are entitled to benefit of doubt.

In the present case, there seems to be free fight between both the parties because appellants were also injured during the incident and evidence of denial of injuries by prosecution witnesses over body of appellants makes their evidence doubtful. Therefore, appellants cannot be held guilty for offence punishable u/s 304 Part-II of the IPC, looking to the judgment passed by this Court in the matter of Bapu @ Bapulal (supra). Therefore, appeal filed by the appellants is partly allowed. They are acquitted from the charges of offence punishable u/s 304 Part-II of IPC. Their conviction for the offence punishable under Sections 323 and 323/34 IPC is maintained. Appellants have been in custody for 8 days during trial and thereafter they have been in custody from passing of the impugned judgment on 04.10.1997 to 18.02.1998, till suspension of their sentence. Considering the period undergone by the appellants in custody and the fact that they are facing litigation since 1996, sentence already undergone by the appellants is sufficient to meet the ends of justice. Therefore, sentence awarded to the appellants is reduced to already undergone and fine of Rs.500/-is also imposed upon them, which has already been deposited by them in the trial Court. Bail bonds of the appellants are discharged.