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HIGH COURT OF JUDICATURE AT JABALPUR
(M.P.)
Criminal Appeal No. 1533/95
PRESENT :
HON'BLE SHRI JUSTICE G.S. Solanki
Raghuvir Singh S/o Pooran Singh
Rajput aged 23 years, R/o Village
Sorkhi Tehsil Begamganj District
Raisen
Versus
The State of Madhya Prades,
Through Police Station
Begamganj
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Shri Surendra Singh Sr. Advocate with Shri A.K.
Dubey, Advocate for the appellant.
Shri Prakash Gupta, Panel Lawyer for the
respondent/State.
Date of hearing: 25/06/2010
Date of Judgment: 26/07/2010
J UD G M E N T
Learned Second Additional Sessions Judge,
Raisen by the impugned judgment dated 11.10.1995
passed in S.T. No. 126/90 recorded conviction of
accused/appellant under Section 307 of Indian Penal
Code, sentenced him to undergo rigorous
imprisonment for five years and to pay fine of Rs.
200/-, in default to suffer rigorous imprisonment for
three months. Being aggrieved,appellant has preferred
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this appeal under Section 374(2) of Code of Criminal
Procedure.
2. It is undisputed that appellant/accused
Raghuvir Singh was prosecuted along with, co-
accused Jashwant Singh S/o Chhatar Singh, Bade
Bhai @ Motiram S/o Chhatar Singh, Halke Bhai @
Thansingh S/o Chhatar Singh, Pooran Singh S/o.
Khuman Singh under Section 148, 307 read with
Section 149 and 324 read with Section 149 of Indian
Penal Code but after trial other all co-accused have
been acquitted by the learned Trial Court.
3. Facts in brief are that on 5.3.90 at about
3.30 the cattle of Ganesh Singh (PW2) S/o
complainant Rajaram (PW1) entered in the filed of
Chhatar Singh (father of co-accused Jashwant Singh,
Bade Bhai and Halke Bhai). So, Bade Bhai abused
Ganesh Singh, at the same time his other brothers
Halke Bhai and Jashwant Singh came there and an
altercation between Ganesh Singh and sons of
Chhatar Singh was going on. At this juncture,
appellant Raghuvir Singh and other co-accused
Pooran Singh also came there. Appellant Raghuvir
Singh having an axe and Bade Bhai, Halke Bhai and
Jashwant Singh having Khaderua (heavy wooden piece
of teak) then appellant Raghuvir assaulted Ganesh
Singh (PW2) on head by an Axe. Ganesh Singh fell
down, at this juncture, Lakhan Singh (PW3), Hakam
Singh (PW4) and complainant Rajaram (PW1) rushed
to rescue. Bade Bhai assaulted Lakhan Singh by
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Khaderua. Halke Bhai assaulted Hakam Singh by
Khaderua, Bade Bhai assaulted Rajaram by Khaderua.
On the instigation of appellant Raghuvir Singh,
Pooran Singh and Bade Bhai, accused persons
attempted to kill Ganesh Singh. Incident was
witnessed by Pooran (PW6) and Madhosingh (PW5).
4. Complainant Rajaram lodged a report
Ex.P/2 at 8.10 p.m. at Police Station Sultanganj.
Crime was registered and injured persons were sent
for medical examination.
5. Dr. G.V. Nair (PW8) examined them and
found grievous injury on the head of Ganesh Singh
and simple injuries on the body of Rajaram, Lakhan
Singh and Hakam Singh. Sub Inspector A.M. Khan
(PW7) prepared the site map (Ex.P/3) on 6.3.90, seized
the blood stained and plain earth/simple soil vide
seizure memo Ex.P/4. After arresting the accused
persons, appellant charge-sheeted along with
acquitted co-accused (stand acquitted).
6. Accused/appellant abjured the guilt
however, the Additional Sessions Judge vide
impugned judgment dated 11.10.95 recorded
conviction and sentence as mentioned herein above.
7. Learned counsel for the appellant
submitted that trial Court has failed to appreciate the
evidence in their true perspectives. All witnesses were
closely related and there were enough contradictions
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in their statements. Their testimony could not be
accepted as reliable. In alternative, he also submitted
that looking to the nature of injuries, no offence under
Section 307 IPC was made out. At the most, an
offence punishable under Section 324 IPC is made
out.
8. On the other hand, learned counsel for the
State has supported the impugned judgment and
finding of the Trial Court.
9. It is true that injured Ganesh Singh (PW2),
his father complainant Rajaram (PW1) and his brother
Hakam Singh (PW4) are closely related witnesses, but
it is settled position of law that testimony of related
witnesses cannot be discarded only on the basis of
their relations to the victim, but their statements
should be tightly scrutinized. After keeping above
principle in mind, I find that all above mentioned
witnesses improved their statements in the Court as
regard to the facts that appellant intending to assault
on the neck of Ganesh Singh, but due to alertness, he
could hit only on the head of Ganesh Singh. But this
particular fact did not find place in there respective
police statements recorded under Section 161 Code of
Criminal Procedure. This fact further find support
from the testimony of independent witness Lakhan
Singh (PW3), who only stated that Ganesh Singh
assaulted by Raghuvir Singh by an axe. He did not say
that appellant was intended to assault on the neck of
Ganesh Singh. Further this fact is not find place in
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FIR Ex.P/2.
10. In these circumstances, prosecution
succeeded to prove by the testimony of injured
witnesses Ganesh Singh (PW2), Rajaram (PW1),
Hakam Singh (PW4) and Lakhan Singh (PW3) that
during the altercation appellant Raghuvir Singh
caused injury on the head of Ganesh Singh by an axe.
11. This vary fact also corroborated by
independent witness Madho Singh (PW5). Further
corroborated by medical evidence of Dr.G.V. Nair
(PW8), who found incised wound on the right parietal
region of head of the size 4″ x 1″ x bone deep and
opined that injury was grievous in nature. His report
is Ex.P/5. Above mentioned facts also substantially
corroborated by FIR Ex.P/2.
12. Learned counsel for the appellant
contended that doctor had not opined, that injury
was sufficient in ordinary course of nature to cause
death. In this circumstance, no offence under Section
307 of IPC is made out. At the most only offence under
Section 324 of IPC is made out.
13. Learned counsel for the appellant placed
reliance on AIR 1993 SC 1256, Pashora Singh Vs.
State of Punjab. In this case, the Apex Court
observed that accused persons having no intention to
cause death of any person nor any injury found which
was sufficient in ordinary course of nature to cause
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death then accused would be only liable to convicted
under Section 326 of IPC, in stead of under Section
307 of IPC. But fact of that case was not identical as
regard to the authorship of infliction of injury. In that
case, it was not established as to which of two
accused, had inflicted injury on the head of deceased,
which was described as dangerous to life.
14. But in the instant case, as discussed herein
above, authorship is undisputed, and it is proved that
appellant Raghuvir Singh caused grievous injury on
the parietal region of the head of Ganesh Singh.
15. It is true that there was no fracture in
parietal bone and the occurrence took place during
altercation between the parties and suddenly
appellant Raghuvir Singh had came there and
assaulted Ganesh Singh. But he chose to hit on the
head which is vital part of the body though the force
he used was not very strong so as to cause fractures
in the parietal bone.
16. In the above circumstances, he is liable to
be convicted under Section 308 of IPC, instead of
under Section 307 of IPC as if the victim had died, he
would be guilty of culpable homicide not amount to
murder.
17. Therefore, setting aside the conviction and
sentence of the appellant for the offence under Section
307 IPC, I alter his conviction and hold him guilty of the
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offence under Section 308 of IPC and convict him to
undergo three years rigorous imprisonment with fine of
Rs. 200/-, in default he further suffer rigorous
imprisonment for one month.
18. To the limited extent stated herein above,
appeal is partly allowed.
19. Accused/appellant is on bail. His bail bond
stand canceled. He is directed to surrender himself
before the trial Court on 20.9.2010 for serving out the
remaining part of the sentence.
(G.S. Solanki)
JUDGE
/07/2010
ravi