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2000 Supreme(MP) 526
2001 (1) JLJ 298
S.P. Khare, J.
Lallu and others v. State of M.P.
Cr. Appeal No. 395 of 2000; against the judgment of Shri Anurag Shrivastava,
III Additional Sessions Judge, Rewa, passed in Sessions Trial No. 69 of 1992;
Decided on 20.6.2000.
Rajendra Singh with R.K. Shukla for appellants;
R.K. Verma for State.
Headnote:(1) Penal Code, 1860 -- Ss. 304 Pt. II/34 -- offence under -- proved by eye witnesses -- presence of eye witnesses not doubtful -- version also corroborated by medical evidence -- offence made out.
After careful scrutiny of the evidence on record this Court is of the opinion that the conviction of appellants Lallu and Sheshmani under section 304(II)/34 IPC, is well merited. Triveni (PW l) is brother of deceased Chotelal. Chotki (PW 2) is wife of the deceased. They are eye witnesses to the incident. The incident took place in front of their house at about 9 a.m. Therefore, the presence of these two witnesses at the time of the incident is quite natural. They have deposed that accused Lallu and Sheshmani assaulted Chotelal with their lathis on his head. According to Triveni (PW 1) appellant Lallu mounted first attack and appellant Sheshmani dealt a second blow on the head of the deceased. [Para 6
The ocular version of Triveni (PW 1) and Chotki (PW 2) is fully corroborated by the medical evidence. The trial Court thus rightly held that Chotelal died on account of the head injury sustained by him at the hands of appellants Lallu and Sheshmani. [Para 8
The appellants Lallu and Sheshmani arrived on the scene of occurrence armed with lathis and caused injuries to Chotelal when he made entreaties to them to desist from their aggressive attitude. The offence under section 304(II)/34 IPC is clearly brought home to appellants Lallu and Sheshmani and they have been rightly convicted for this offence. [Para 9
(2) Criminal Practice -- simple/minor injuries on persons of accused not explained -- prosecution will not fail on that score.
The prosecution is not bound to explain each and every injury on the accused persons irrespective of the nature of the injury and in respect of some minor injury on the accused, if no explanation is offered by the prosecution, the prosecution would not fail on that score. (1999) 9 SCC 139 followed. [Para 9
(3) Penal Code, 1860 -- Ss. 304 Part II/34 and 307/34 -- offence under -- three accused -- two fatal injuries -- minor injury not proved to have been caused by third accused -- entitled to benefit of doubt. [Para 10
(4) Penal Code, 1860 -- S. 307/34 -- victim though naming accused in police statement but resiling in Court -- accused cannot be convicted on basis of statements of other witnesses which are only of corroborative nature. [Para 11
(5) Penal Code, 1860 -- Ss. 304 part II/34 -- five years and 6 months already undergone in jail -- sufficient punishment of offence. [Para 12
¼1½ naM lafgrk] 1860 && /kkjk 304 Hkkx 2@34 && vijk/k && izR;{kn‘khZ lk{khx.k }kjk lkfcr && izR;{kn‘khZ dh mifLFkfr lansgkLin ugha && o`Ùkkar Hkh fpfdRlh; lk{; }kjk laiq"V && vijk/k fl)A
vfHkys[kxr lk{; dh lko/kkuhiwoZd laoh{kk djus ds i‘pkr~ bl U;k;ky; dh jk; gS fd naM lafgrk dh /kkjk 304 ¼2½@34 ds v/khu vihykFkhZ yYyw rFkk ‘ks"kef.k dh nks"kflf) lq;ksX; gSA f=os.kh ¼v lk 1½ e`rd NksVsyky dk HkkbZ gSA NqVdh ¼v lk 2½ e`rd dh iRuh gSA os ?kVuk ds izR;{kn‘khZ lk{kh gSaA ?kVuk yxHkx 9 cts izkr% muds edku ds lkeus gqbZ FkhA vr%] ?kVuk ds le; bu nksuksa lkf{k;ksa dh mifLFkfr fcYdqy LokHkkfod gSA mUgksaus vfHklk{; fn;k gS fd vfHk;qDrx.k yYyw rFkk ‘ks"kef.k us viuh ykfB;ksa ls NksVsyky ds flj ij geyk fd;kA f=os.kh ¼v lk 1½ ds vuqlkj] vihykFkhZ yYyw us izFke vkØe.k fd;k rFkk vihykFkhZ ‘ks"kef.k us e`rd ds flj ij nwljk izgkj fd;kA ¿ iSjk 6
f=os.kh ¼v lk 1½ rFkk NqVdh ¼v lk 2½ dk pk{kq"k o`Ùkkar] fpfdRlh; lk{; ls iw.kZr% laiq"V gSA fopkj.k U;k;ky; }kjk Bhd&gh vfHkfu/kkZfjr fd;k x;k gS fd NksVsyky dh e`R;q vihykFkhZx.k yYyw rFkk ‘ks"kef.k ds gkFkksa mls igq¡ph flj dh {kfr ds dkj.k gqbZA
vihykFkhZ yYyw rFkk ‘ks"kef.k ykfB;ksa ls l‘kL= gks dj ?kVuk LFky ij igq¡ps rFkk tc NksVsyky us muls viuk vkØe.k‘khy :[k NksM+us dk vuqu; fd;k rc NksVsyky dks {kfr;k¡ igq¡pkbZaA vihykFkhZx.k yYyw rFkk ‘ks"kef.k Li"Vr% naM lafgrk dh /kkjk 304 ¼II½@34 ds v/khu vijk/k ds nks"kh fl) gks x, gSa rFkk mUgsa bl vijk/k ds fy, Bhd&gh fl)nks"k Bgjk;k x;k gSA ¿ iSjk 9
¼2½ nkafMd izFkk && vfHk;qDrx.k ds ‘kjhj ij lknh@xkS.k {kfr;k¡ Li"Vhd`r ugha && vfHk;kstu bl dkj.k foQy ugha gksxkA
{kfr ds Lo:i ls fujis{k vfHk;kstui{k vfHk;qDr O;fDr;ksa dks igq¡ph izR;sd {kfr ds Li"Vhdj.k ds fy, ck/; ugha gS rFkk vfHk;qDr dks igq¡ph dqN xkS.k {kfr;ksa ds ckjs esa ;fn vfHk;kstui{k }kjk dksbZ Li"Vhdj.k ugha fn;k tk, rc bl dkj.k vfHk;kstu foQy ugha gksxkA ¼1999½ 9 ,l lh lh 139 vuqlfjrA ¿ iSjk 9
¼3½ naM lafgrk] 1860 && /kkjk 304 Hkkx 2@34 rFkk 307@34 && vijk/k && rhu vfHk;qDr && nks ?kkrd {kfr;k¡ && xkS.k {kfr r`rh; vfHk;qDr }kjk dkfjr dh tkuk lkfcr ugha && lansg ds Qk;ns dk gdnkj gSA ¿ iSjk 10
¼4½ naM lafgrk] 1860 && /kkjk 307@34 && ;|fi vkgr O;fDr }kjk vfHk;qDr iqfyl dFku esa ukfer rFkkfi U;k;ky; esa izfrf{kIr && vfHk;qDr dks vU; lk{khx.k ds ,sls dFkuksa ds vk/kkj ij fl)nks"k ugha Bgjk;k tk ldrk tks dsoy laiks"kd Lo:i ds gSaA ¿ iSjk 11
¼5½ naM lafgrk] 1860 && /kkjk 304 Hkkx 2@34 && igys gh tsy esa Hkksxs x, ik¡p o"kZ rFkk Ng ekl && vijk/k ds fy, i;kZIr naM gSA
1. Appellants Lallu, Sheshmani and Ramraj have been convicted under sections 304(II)/34 and 307/34 IPC and sentenced to rigorous imprisonment for seven years and five years respectively. They have also been sentenced to pay a fine of Rs. 1,000/- each on each Count.
2. The prosecution case was that on 17.2.1991 at about 9 a.m. appellants Lallu, Sheshmani and Ramraj alongwith three other persons came in front of the house of deceased Chotelal who was constructing a mud-wall. They were armed with lathis. Bishram was one of the labourers who was constructing the wall. The appellants asked him why his son Arjun had beaten Rambahore a day earlier. They threatened to cause injuries to him. Deceased Chotelal asked the appellants that they should not commit breach of peace in front of his house. The appellants assaulted deceased Chotelal with lathis causing two lacerated wounds on his head which proved fatal later. During this incident the appellants assaulted Jaglal (PW 10) causing head injury. Triveni (PW 1) lodged the report Ex. P-1 on the same date at 1.00 p.m. at Garh Police Station. Chotelal and Jaglal (PW 10) were sent for medical examination. Chotelal died in the hospital on 18.2.1991 at 2.10 a.m.
3. The appellants pleaded not guilty. Their defence was that they had gone to the place of incident to remonstrate Bishram for the unbecoming conduct of his son. It was also pointed out that appellants Lallu and Ramraj had also sustained injuries in this incident. Ramkali on their side was also injured. These injuries have not been explained by the prosecution.
4. The trial Court after appreciation of the evidence on record held that three appellants had formed common intention to cause injuries to Chotelal and Jaglal (PW 10) and in furtherance of that common intention they actually caused injuries to the two persons. On this finding the appellants have been convicted and sentenced as stated at the outset.
5. In this appeal it has been argued on behalf of the appellants that the prosecution has failed to establish that there was common intention on the part of the appellants to cause injuries to Chotelal and Jaglal (PW 10). It is also contended that the injuries sustained by the three persons on the side of the accused have not been explained by the prosecution witnesses and therefore, it must be held that they have suppressed true version of the incident. It is further pointed out that Jaglal (PW 10) who is said to be the victim of the offence has not supported the prosecution case and therefore, the appellants could not be held guilty for the offence under section 307/34 IPC.
6. After careful scrutiny of the evidence on record this Court is of the opinion that the conviction of appellants Lallu and Sheshmani under section 304(II)/34 IPC is well merited. Triveni (PW 1) is brother of deceased Chotelal. Chotki (PW 2) is wife of the deceased. They are eye witnesses to the incident. The incident took place in front of their house at about 9 a.m. Therefore, the presence of these two witnesses at the time of the incident is quite natural. They have deposed that accused Lallu and Sheshmani assaulted Chotelal with their lathis on his head. According to Triveni (PW 1) appellant Lallu mounted first attack and appellant Sheshmani dealt a second blow on the head of the deceased. There is a discrepancy on this point whether accused Lallu was first to strike the deceased or it was accused Sheshmani who did so. In the FIR Ex. P-1 accused Sheshmani is said to have given the first blow on the head of the deceased whereas in his evidence Triveni (PW 1) has stated that the first attack was made by accused Lallu. This discrepancy is not very material in view of the categorical medical evidence to the effect that the deceased had two lacerated wounds on his head. Dr. A.K. Mishra (PW 4) has deposed that he conducted the autopsy on the body of deceased Chotelal and found a lacerated wound 6.5 cms. on his right parietal region and a haematoma 2" x 2" on
