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High Court Of Madhya Pradesh
Abhay K. Gohil, B. M. Gupta
CHAND KHAN - Appellant
Versus
STATE OF MADHYA PRADESH - Respondents
Criminal Appeal 411 Of 2002
Decided On : 04/25/2006
not be doubted merely on ground that they were inside house because incident took place in same Mohala just at a close distance of their house — Incident took place because deceased started abusing and he was a person of criminal background and people were afraid of him — No opinion of doctor that injury on head sufficient to cause death in ordinary course of nature — Appellants caused single injury on head of deceased by farsa, a sharp edged weapon — However evidence of PWs 11 and 13 that appellant gave a lathi blow on head of deceased — Single farsa blow inflicted by only appellant Al and A2 inflicted only lathi blow on non vital part of body — Absence of evidence that head injury was sufficient to cause death in ordinary course of
nature — Since deceased and accused were close relatives and incident started because of abuses made by deceased first, case one falling u/s 304part II IPC and not u/s 302 IPC — Conviction of
appellants altered from one u/s 302/34 IPC to one u/s 304 Part II IPC.(Paras 7, 8, 9, 10, 11)
Facts of the case:
1.The appellant accused persons two in number here in the instant case were prosecuted along with three others for causing death of deceased by assaulting him with weapons like farsa and lathis. Prosecution case that deceased and accused persons were closely related to each other and there was dispute with deceased on ground of parting of land in favour of one of brother of deceased. Trial Court while convicting appellants, acquitted remaining three accused persons
2.Aggrieved by said order of conviction and sentence, appellants have preferred present appeal on plea that looking to single fatal blow on head of
deceased, case would not fall u/s 302 IPC.
3.Findings of the Court : The Court held that appellants caused single injury on head of deceased by farsa, a sharp edged weapon. However evidence of PWs 11 and 13 that appellant gave a lathi blow on head of deceased. Single farsa blow inflicted by only appellant Al and A2 inflicted only lathi blow on non vital part of body. Absence of evidence that head injury was sufficient to cause death in ordinary course of nature. Since deceased and accused were close relatives and incident started because of abuses made by deceased first, case one falling u/s 304 part II IPC and not u/s 302 IPC. Conviction of appellants altered from one u/s 302/34 IPC to one u/s 304 Part II IPC
Result : Appeal partly allowed.
( 1 ) VIDE Judgment dated 26. 8. 2002 passed by Additional sessions Judge, Sironj, District Vidisha, in sessions Trial No. 134/94 both the appellants have been convicted under sections 302/34 and 323/34 IPC, and sentenced to life imprisonment with fine of rs. 2000/- each and 6 months R. I. and fine of Rs. 1,000/- each, respectively. In this appeal both the appellants have assailed the judgment of the trial Court.
( 2 ) PROSECUTION story, as incorporated in the FIR, is that the residential house of Aziz Khan s/o Chhotekhan is near the house of Mohsin-acquitted accused. It was alleged in the report that on 7. 11. 92 at about 7. 30 p. m. Aziz Khan was standing in front of his house. At that time, Chandkhan s/o Bannekhan armed with farsa, Mohsil armed with farsa, yusufkhan (tried by Juvenile Court)armed with lathi and Naseem armed with lathi came there and shouted that kadma would not be spared. Apprehending that a quarrel may not take place with jalal, the witness went behind the house of Chandu Tailor and noticed that 4 accused persons surrounded Jalal and chandkhan s/o Bannekhan inflicted farsa blow to the deceased hitting him on the side of upper ear. Mohsin is also said to have given farsa blows. Yusuf and naseem also gave lathi blows in the legs of Jalal. Hearing the noise Abid son of deceased came there and he was also beaten by Yusuf. In the meantime another Chandkhan came there and he was caught hold by the witness and after beating accused persons ran away from the spot. The FIR of the incident was lodged by Aziz Khan (PW11 ). Jalal was taken to hospital by Dinbhai (acquitted accused ). Crime was registered, matter was investigated and after investigation chargesheet was filed.
( 3 ) DURING trial prosecution examined as many as 13 witnesses; out of which PW1 to 6, PW 11 and PW 13 have not supported the prosecution and were declared hostile. Learned trial Court placing reliance on the evidence of Abid Khan (PW7) who is the son of deceased and anisha Bee (PW8) wife of the deceased coupled with the medical evidence of Dr. S. S. Thakur (PW10), convicted the appellants and sentenced them as aforesaid, but acquitted three other accused persons, namely, Mohsin Khan, Din mohammad and Chandkhan, against which the State has not preferred any appeal, and the convicted appellants have preferred this appeal.
( 4 ) AT the outset, learned counsel for the appellants submitted that he shall not challenge the participation of the appellants in the commission of crime but he shall only challenge the conviction of the appellants under Section 302 ipc. His submission is that this is a case of single fatal blow and according to the findings recorded by the trial Court, the same has been attributed to accused chandkhan S/o Bannekhan. He has also submitted that as per medical evidence, though the doctor has found injury no. (i)as fatal and dangerous to life, but there is no evidence that the said injury was sufficient to cause death in the ordinary course of nature although the deceased died within three hours. His further contention was that the other injuries which were four in number were not fatal and they were superficial in nature. The contention of the learned counsel for the appellants is that if the evidence of Abid khan (PW7) and Anisha Bee (PW8) is not reliable as they were not present on spot and had not seen the incident but even if it is relied, at the most the case will fall within the purview of Section 304 Part ii, IPC. It is further submitted that the deceased Jalalkhan was a person of criminal background. He was behaving like a gangster in the area and was involved in several criminal activities. The deceased is also related with the appellants. The incident took place because the deceased Jalal Khan wanted to part the land in favour of one brother discriminating with other, whereas Ishaqkhan (PW13) who is the brother of the deceased, was claiming the land and the accused persons are the brother-in-law of A
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