Ram Vs. State of Madhya
Pradesh  Insc
609 (3 December 2003)
Hegde & B.P. Singh B.P. Singh, J.
Ram, who is the sole appellant in this appeal by special leave, has impugned
the judgment and order of the High Court of Madhya Pradesh, Jabalpur in
Criminal Appeal No. 94 of 1991 dated 30th September, 1996 finding him guilty of
the offence under section 304 Part-I IPC and sentencing him to undergo rigorous
imprisonment for eights years and a fine of Rs.5,000/-, in default to undergo further
rigorous imprisonment for 20 months.
Bagdi Ram, alongwith five members of his family, was put up for trial before
the Second Additional Sessions Judge, Mandsaur in Sessions Trial No. 212 of
1990 in which they were variously charged of the offences under sections 147,
148, 323/149, and 302/149 IPC. The trial court by its judgment and order dated 20th December, 1990 acquitted all of them holding that
they had acted in exercise of their right of private defence and that the
prosecution had failed to explain the injuries suffered by three members of the
defence party. State of Madhya
Pradesh preferred an
appeal against the acquittal of all the six accused persons and by the impugned
judgment and order, the High Court while setting aside the order of acquittal
passed in favour of appellant Bagdi Ram and his son Ramesh, acquitted the other
accused persons. The High Court, as noticed earlier, found the appellant guilty
of the offence under Section 304 Part I IPC and sentenced him as earlier
noticed. Ramesh was found guilty of the offence under section 323 IPC and was
sentenced to the period of imprisonment already undergone and a fine of
Rs.500/-, in default to undergo rigorous imprisonment for two months.
incident giving rise to this appeal occurred on May 12, 1990 in village Digaonmali in which Mangilal and three members
of his family suffered injuries at the hands of the accused. One of them,
namely Jagdish later succumbed to his injuries.
case of the prosecution is that Bagdi Ram and Mangilal, PW.4 resided as neighbours
in the same locality. On the date of incident the appellant herein was getting
a wall constructed which was objected to by Mangilal, PW.4 on the ground that
the construction of the wall would obstruct passage to his house. An
altercation followed in which the appellant and his sons are alleged to have
abused Mangilal to which Mangilal objected. The appellant and his three sons,
namely Ramesh, Dinesh and Dilip started assaulting Mangilal, PW.4 causing
injuries on his back and head. Ramesh, PW.1, son of Mangilal intervened but he
was also assaulted. The incident attracted Jagdish, (deceased) and Gopal, PW.3
another son of Mangilal to the place of occurrence and when they attempted to
intervene they were also assaulted. The case of the prosecution is that
appellant Bagdi Ram caused an injury on the head of the deceased by assaulting
him with a 'gainti' (pick-axe) as a result of which Jagdish, (deceased) fell
down. Other members of the family of appellant Bagdi Ram also came to the spot
and started pelting brick-bats on the members of the prosecution party. This
attracted many residents of the locality to the place of occurrence, Bhanwarlal,
PW.6, being one of them. Apart from deceased Jagdish and Mangilal, PW.4, Sampatibai,
PW.2 wife of Mangi Lal and Gopal, PW.3 were also injured. Bhanwarlal, PW.6
brought them to the District Hospital at Mandsaur. Jagdish (deceased) was unconscious. It appears
that Ramesh, PW.1, who was assaulted alongwith his father when the incident
began, had rushed to the police station at Afzalpur and lodged a report Ext.
P/1 at 10.20 a.m. and a case was registered by Head
Constable Gopala Singh, PW.8 under Sections 341, 294 and 323 IPC.
the injured persons were admitted in the hospital, Dr. A.V. Gwaliorkar, PW.10
sent information to the police station and pursuant thereto Head Constable Ramnagina
Singh, PW.9 came to the hospital. He arranged for the medical examination of
the injured witnesses as well as Jagdish who later died. Since the condition of
Jagdish was precarious, he was shifted to H.Y.
Hospital, Indore but he succumbed to his injuries on May 16, 1990.
post-mortem examination of the dead body of deceased Jagdish revealed the
following ante mortem injuries suffered by him :-
Contusion 3 cm. square in shape on the right leg.
Abrasion 2 cm. x 1 cm. below left eye.
Abrasion 2.5 cm. x 1 cm on back side of left elbow.
Punctured lacerated wound present on the glabella, 2 cm in diameter, scalp
deep. Underneath bone was fractured into pieces.
Rail pattern bruise present on the left eligible lateral aspect 6 cm x 2 cm
size. Intervening (eligible) is 1 cm. obliquely vertical.
Rail pattern bruise present on left scapular region, middle part, obliquely
transverse 6 cm x 1.5 cm margins slightly diffused. Intervening healthy area is
Surgical and stitched wound present on scalp right side arising from ptarygia
going upwards for 6 cms. then curve laterally and goes posteriorly for 14 cms. arise
and (eligible) downwards. It is 22 cms. long and 1.5 cm. wide. It is having
intact stitches. It is having laceration of margins of wound at middle part
from anterior to posterior end. There is abrasion on border laterally 0.6
cm." The injury caused on the head of Jagdish was such that it fractured
the right temporal parietal region and there was a craniotomy hole in 5 cm.
diameter area. There was a radiating fracture extending upto right ptergia
region 6 cm. in length. Extra dural haematoma present at an area of 8 cm. x 6.5
cm. The fracture extended to the base of the skull in right anterior cranial fossa
from external fracture. There is no dispute that the injury allegedly caused by
the appellant on the head of the deceased resulted in his death.
prosecution examined several eye witnesses to prove its case which included Mangilal,
PW.4, his wife Sampatbai, PW.2 and two sons Ramesh, PW.1 and Gopal, PW.3 and Bhanwarlal,
PW.6, a co-villager.
on the other hand contended that the prosecution party was the aggressor and
that they had assaulted three members of the defency party, namely - accused Sumitra,
Bagdi Ram and Dinesh.
contended that the members of the prosecution party were aggressors and they
had only retaliated in exercise of the right of private defence of person.
trial court was impressed by the plea urged before it, namely that the members
of the prosecution party were the aggressors. It held in favour of the accused
holding that since the appellant was constructing a wall on his own land, the
members of the prosecution party had no rhyme or reason to object. Since the
injuries sustained by three members of the defence party was not explained by
the prosecution, it held that the prosecution party was the aggressor and the
accused acted in exercise of right of private defence of person.
High Court on a careful appreciation of the evidence on record has found the
findings recorded by the trial court unsustainable having regard to the
evidence on record. The evidence on record clearly establishes that Mangilal,
when he initially objected to the erection of the wall in front of his
entrance, was not an aggressor. He merely objected to the construction of a
wall blocking his passage.
members of the prosecution party including those who came subsequently were
unarmed. The mere fact that they objected to the erection of the wall in front
of their entrance did not pose any threat to the members of the defence party.
There was really no reason for the members of the defence party to adopt an
aggressive posture by assaulting Mangiram and his son Ramesh in the first
instance, and thereafter assaulting Jagdish, deceased and others. It is
noticeable that Mangiram and his son Ramesh were initially assaulted, and when
they raised an alarm Jagdish, deceased, came running to the rescue of his
father and brother. Admittedly he was unarmed. His rushing to the place of
occurrence was not an act of aggression and it was only natural for him to come
to the rescue of his father and brother who were being assaulted by the appellant
and his family members. In such a situation there was really no justification
for the appellant to assault Jagdish with a 'gainti' (pick-axe) and that too on
the head of Jagdish causing such a serious injury. He must have assaulted Jagdish,
deceased, with all his might having regard to the fact that the skull bone was fractuared
and extensive damage had been caused to the skull, as noticed by the doctor who
performed the post-mortem examination.
appreciated the entire evidence on record we are satisfied that the High Court
was right in holding that the appellant and other members of his family had no
apprehension of danger to their person because members of the prosecution party
were all unarmed. It has come in evidence, and the High Court has also recorded
a finding that at some stage brick-bats were pelted from both sides by members
of the families of Bagdi Ram and Maniglal which included some ladies. The
injuries on the person of three of the accused are thus explained. Since both
the parties indulged in brick- batting the High Court has given the benefit
thereof to the defence and has acquitted four of the accused persons against
whom there was no direct evidence of having participated in the assault. The
High Court has analysed the evidence on record with a view to find out which of
the members of the defence party actually assaulted the members of the
prosecution party. So far as the appellant is concerned the evidence is clear
and categoric that it was he who assaulted the deceased on his head with 'gainti'
(pick-axe). The High Court, however, held, and in our view, rightly, that in
the facts and circumstances of the case the appellant did not intend to cause
the death of the deceased. There was an altercation followed by assault on
PWs.1 and 4 and brick-batting from both sides. When tempers ran high, in the
heat of passion, upon sudden quarrel, the appellant assaulted the deceased
though unarmed, but without pre-meditation.
caused only one injury to the deceased by picking up the 'gainti' (pick-axe)
lying there, and the fact that he did not repeat the blow is indicative of the
fact that he did not intend to cause the death of the deceased. The High Court
gave to the appellant the benefit of Exception 4 to Section 300 and found the
appellant guilty of the offence under section 304 Part I IPC. We find no error
with the finding recorded by the High Court. But in the facts and circumstances
of the case we are of the view that the sentence of eight years is on the
higher side. The ends of justice would be met if the sentence is reduced to
three years rigorous imprisonment.
we allow the appeal partly modifying the sentence awarded to the appellant to
three years rigorous imprisonment under Section 304 Part I IPC but maintain the
sentence of fine of Rs.5,000/- and in default of payment of fine to undergo
further rigorous imprisonment for six months. This Court by its order dated 25th April, 1997 had granted bail to the appellant.
The bail bonds furnished by the appellant are cancelled and he is directed to
surrender to serve out the remainder of his sentence. He shall be entitled to
the benefit of set off under Section 428 of the Code of Criminal Procedure.