The main legal point established in the judgment is the application of legal principles to determine the appropriate offense based on the nature of injuries and intention.

JUDGMENT

G.S. Ahluwalia J. - This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the judgment and sentence dated 11-8-2010 passed by Additional Sessions Judge, Pichhore, Distt. Shivpuri in S.T. No. 269 of 2009, by which the appellant Gopal has been convicted under Section 302/34 of I.P.C. and has been sentenced to undergo the Life Imprisonment and fine of Rs. 500/- in default 3 months R.I.

2. It is not out of place to mention here that a report dated 9-8- 2021 has been received from the office of Superintendent, Central Jail, Gwalior that the Appellant No.2 Amar Singh has expired on 27- 11-2020. Even the Appellant No.1 Gopal was granted interim bail by order dated 27-11-2020 to perform last rites of Appellant No.2 Amar Singh. Accordingly, by order dated 17-1-2022, the appeal filed by Appellant No.2 Amar Singh has been dismissed as abated.

3. According to the prosecution case, on 1-8-2009, a telephonic message was received by S.H.O., Police Station Khaniyadhana, that Jagdish has been killed by Appellants Gopal and Amar Singh by assaulting him by Lathi. Accordingly, the said information was recorded in the Rojnamchasanha and police party went to the spot.

4. Dehati Nalishi, Ex. P.1 was recorded on 1-8-2009 at 19:50 on the information given by Kaushal. It was alleged that the complainant and his family is the resident of village Kumharra.

Today, his brother Jagdish was returning back after purchasing Bidi.

Sometimes, Jagdish under the influence of alcohol, is in habit of creating nuisance and on this issue, the accused persons had enmity.

When Jagdish reached near the house of Deena Jatav, then he was waylaid by Gopal and Amar Singh. They were having lathis with them. Gopal and Amar Singh started abusing and beating him. After hearing the noise, the complainant also rushed to the place of incident and saw that Gopal and Amar Singh were brutally beating Jagdish.

When he tried to intervene in the matter, then he was pushed back.

Jagdish fell down. Gopal and Amar Singh dragged him to the field of Gunde Bavo and again assaulted him. Jagdish sustained injuries on his head, shoulder, back, hands and legs, as a result, Jagdish became semi-unconscious. The complainant, some how managed to take Jagdish to the house of his maternal uncle Komal. He also called his Bhabhi. He was searching for the conveyance for taking Jagdish to Hospital, however, Jagdish died, thereafter, he requested son of Sarpanch to inform police.

5. The police registered the FIR. The dead body of Jagdish was sent for post-mortem. The statements of witnesses were recorded.

The Appellant Gopal and Amar Singh were arrested. Lathis were seized. The police after completing the investigation filed charge sheet against Gopal and Amar Singh for offence under Section 302/34 of I.P.C.

6. The Trial Court by order dated 16-12-2009 framed charge under Section 302/34 of I.P.C.

7. The Appellant Gopal and Amar Singh abjured their guilt and pleaded not guilty.

8. The prosecution examined Kaushal (P.W.1), Smt. Vidhya (P.W.2), Ramesh Kumar Lodhi (P.W.3), Ku. Bhavana (P.W.4), Kishan Lal (P.W.5), Mihi Lal (P.W.6), Smt. Bhuri bai (P.W.7), Phool Singh (P.w.8), Parmal Singh Raghuvanshi (P.W.9), Bhogiram (P.W. 10), Dr. Virendra Uchadiya (P.W.11), Vishwadeep (P.W. 12), and S.P. Pandey (P.W. 13).

9. The Appellants examined Vikram (D.W.1) and Devendra (D.W.2) in their defence.

10. The Trial Court, by the impugned judgment, has convicted and sentenced the Appellant Gopal and Amar Singh for the offences mentioned above.

11. It is submitted by the Counsel for the Appellant that according to the prosecution story, the deceased Jagdish was in habit of creating nuisance after consuming alcohol, and he was beaten on that issue only. There was no intention on the part of the Appellant Gopal to kill Jagdish. The act of the Appellant Gopal would squarely fall within the ambit of Section 304 Part 1 or 2 I.P.C. and the Appellant Gopal has already undergone the actual jail sentence of 12 years. Thus, it