& Anr Vs. State of Madhya
Pradesh  Insc
566 (19 October 2001)
K.G.Balakrishna K.G. Balakrishnan, J.
two appellants herein were tried by the Sessions Judge, Shajpur in Madhya
Pradesh, along with nine others for the various offences punishable under
Sections 302, 148, 323, 341 read with section 149 IPC. The learned Sessions
Judge acquitted three of the accused and found others guilty of all the
offences charged. The accused who were convicted by the Sessions Court filed an
appeal and the Division Bench of the Madhya Pradesh High Court, Bench at Indore, acquitted six of the appellants
and found guilty the present appellants for the offences under Section 302/34
IPC and they were sentenced to undergo imprisonment for life. The above
conviction and sentence are challenged before us.
heard the appellants learned counsel, Mr. Niraj Sharma.
learned counsel contended that the appellants have been wrongly convicted as
the evidence adduced by the prosecution was highly interested and that there
was a free fight between two factions and the appellants have not committed any
stated, the prosecution case is that on 20.7.1987 Ayyub Khan, the third accused
before the Sessions Court, used some abusive words against Ganesh, son of
deceased Bihari Lal, whereby Ganesh felt irritated and slapped Ayyub. People of
the locality then persuaded the parties to compromise the matter and there was
no further incident. But on 24.7.1987 at about 2.00 PM when deceased Bihari Lal and his brother Ramchandra along
with their children were returning after performing some ceremony at the
temple, the appellants and other accused, who were waiting for them on the way
stopped Bihari Lal and others.
Lal was carrying a gun with him and according to prosecution, accused Nawab
snatched away that gun from Bihari Lal and thereafter all the accused started
beating Bihari Lal.
accused were carrying Farsi and Sticks. The first appellant Majju alias Nasir
hit deceased Bihari Lal with a Stick and the second appellant Irshad hit Bihari
Lal with a Farsi on the head. Bihari Lal fell unconscious. He was taken to Shajpur
hospital but as his condition was serious he was immediately removed to M.Y. Hospital, Indore, where, while undergoing treatment,
the brother of the deceased Bihari Lal also had sustained injuries. According
to the prosecution, in the meanwhile, somebody had informed the police and
pursuant thereto the police came to the place of occurrence and recorded the statement
of Ganesh, son of Bihari Lal. PW-13 took over the investigation and the dead
body of the deceased was sent for post mortem examination. PW-14, Dr. D.S.
Mehta, examined the deceased and found that he had five incised wounds -- two
on the head, one on the leg and two on arms, and these injuries were caused by
a sharp cutting weapon. PW-8, Dr. Vijay Agrawal, who conducted the post-mortem,
stated that injuries 4 and 5 were not caused by a cutting weapon but by some
blunt weapon. He opined that death was caused due to head injury.
side of the prosecution, four eye-witnesses, namely, Ganesh [PW-1]; Laxminarayan
[PW-2]; Ramchandra [PW-6] and Subhash [PW-7] were examined. All these witnesses
gave evidence of identical nature with minor contradictions.
counsel for the appellants contended that the evidence adduced by the
prosecution was interested and therefore, it cannot be relied upon. It is
important to note that the witnesses examined on the side of the prosecution
were all injured in the incident. PW-6 Ramachandra sustained a grievous injury,
in the sense that he lost one of his teeth. The other witnesses also sustained
is proved by the various medical certificates issued by the doctor who examined
them. Therefore, the presence of these witnesses at the place of occurrence
cannot be suspected. All these witnesses gave evidence to the effect that when
they along with deceased Bihari Lal were coming from the temple after
performing some ceremony, the accused surrounded and attacked them. We do not
find any infirmity in the evidence of these witnesses.
counsel for the appellants contended that the doctor, who conducted the post
mortem examination deposed that there were no incised injuries as stated
earlier by another doctor who first examined the deceased Bihari Lal. In our
opinion, it is not a serious mistake as there are four eye-witnesses in this
case who deposed that appellants Majju alias Nasir and Irshad were having Farsi
with them and they inflicted cut injuries on Bihari Lal. PW-8 Dr. Vijay Agrawal
conducted the post-mortem and described the injuries in a hap-hazard manner
without proper description of the wounds as to whether these were incised
injuries or lacerated injuries. But the doctor who examined the injured immediately
after the occurrence of the incident, described the nature of injuries and that
is fully in conformity with the oral evidence given by the witnesses. The
Sessions Judge as well as the High Court has rightly relied on the evidence of
the doctor who prepared the wound certificate of the deceased.
counsel for the appellants further contended that there was a free fight
between two groups and it is not possible to decide as to who caused the fatal
injuries to the deceased and therefore, the appellants should have been found
guilty of offence under Section 326 IPC alone. It is true that there was an
attack by a group of persons against the deceased and others accompanying him.
In view of some doubts regarding the complicity of some of the assailants, the
Sessions Court as well as the High Court extended the benefit of doubt to those
accused, but as regards the present appellants, there is strong and consistent
evidence to the effect that they had given the blows by Farsi to the deceased Bihari
were described even in the First Information Report and all the eye-witnesses
deposed that the appellants had caused the injuries to the deceased Bihari Lal.
Therefore, we do not find any infirmity in the decision rendered by the High
Court in finding these appellants guilty of the offence under Section 302 read
with Section 34 IPC. There is no merit in the appeal and the same is dismissed