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A.K. Awasthy, J.
1. This judgment, will also decide Criminal Appeal No. 233 of 1997 and Criminal Appeal No. 249 of 1997 filed by appellant accused Badrilal s/o Hiralal Khati.
2. The appellants accused have preferred the appeals under Section 374 of the Code of Criminal Procedure against the judgment and order dated 25-1-1997 delivered in Sessions Trial No. 41/1993 by learned Third Additional Sessions Judge, Dewas, of their conviction and sentence for the offences punishable under Section 302 read with Section 34 of IPC for the imprisonment for life and fine of Rs. 500.00 – Rs. 500.00 and in default further RI of 6-6 months.
3. The prosecution case is that on 30-12-1991 at about 1.00 p.m. at Badi Phate, the accused Badrilal and Ramprasad quarreled on account of the damage to the crops by the catties. That on the same day at about 5.30 p.m. when Ramprasad was going to the market, near Badi Phate, appellants accused Badrilal, Prakash and Dinesh caused the injuries to him by lathi and the lathi blow on the head of Ramprasad was given by accused Badrilal and thereafter these three accused persons along with 4 others ran away from the spot. The eye witnesses of the incident were Hiralal (P.W. 2), Mangilal (P.W. 3), Murli (P.W. 4), Laxminarayan (P.W. 5), Rameshchandra (P.W. 6) and Bhimsingh (P.W. 8). The incident was informed to the wife of Ramprasad, namely Reshambai (P.W. 9) and Resharnbai (P.W. 9) reached on the spot with Vikramsingh (P.W. 1), Murli (P.W. 4) and Sitabai. The FIR Ex. P-20 was lodged by Sitaram to A.S.I. Prahlad singh (P.W. 13). Ramprasad was examined by Dr. K.K. Sharma (P.W. 17) in Primary Health Centre, Bagali and he has found one lacerated wound on his skull vide report Ex. P-26. Thereafter Ramprasad succumbed to the injuries and Dr. Ravindra Choudhary (P.W. 11) reported in autopsy report Ex. P-18 that death was on account of the multiple fractures of the parietal bone of the deceased. During the investigation, I.O. Fatch Bahadur singh (P.W. 12), accused Badrilal, Prakash, Babulal, Dinesh, Bukhar, Radhakishan and Hiralal were interrogated and on the basis of their statements, the Kharada was seized from the possession of accused Badrilal and the lathis were seized from the other accused persons. After the usual investigation, the charge-sheet was filed against the appellants accused alongwith 4 others under Sections 147, 302/149 and 504 of the IPC.
4. The prosecution has examined 19 witnesses and the defence has produced 3 witnesses and the learned Trial Court relying on the statements of the eye witnesses convicted and sentenced the accuse Badrilal, Prakash, and Dinesh as stated above and other 4 co-accused were acquitted. That accused Dinesh has died after filing the appeal and the proceedings against him were dropped.
5. Appellants Badrilal and Prakash have alleged that their conviction is against the facts and law and the Court has not properly assessed the evidence and as such the appellants accused should be acquitted. That, however, they can be convicted only under Section 304 Part II of the IPC.
6. The prosecution has examined eye-witnesses Hiralal (P.W. 2), Mangilal (P.W. 3, Murli (P.W. 4), Laxminarayan (P.W. 5), Rameshchandra (P.W. 6) and Bhimsingh (P.W. 8). Hiralal (P.W. 2) has stated that at about 5.00 p.m. when he was in the Barber’s Saloon at Badi Phate, he saw the accused Badrilal and Prakash were chasing Ramprasad and he was belaboured and beaten by lathis by them. That the lathi blow on the head of Ramprasad was given by Badrilal and Ramprasad fell down. Hiralal (P.W. 2) has further stated that on that day weekly market was in the vicinity and about 50 persons had gathered on the spot. In the cross-examination of Hiralal (P.W. 2), there is not a single contradiction. The one omission is pointed out from his earlier statement Ex. D-2 which is regarding the fact that whether the people were asking to provide the water to Ramprasad. This omission is insignificant. Hiralal (P.W. 2) is an independent and natural witness and there is nothing to corrode his credibility.
7. Mangilal (P.W. 3) has testified that accused Badrilal, Prakash and Dinesh were causing the injuries to Ramprasad and the injury by Badrilal was caused on the head of Ramprasad. The police has recorded the statement of Mangilal (P.W. 3) on the same day of incident at about 6.00 p.m. There is nothing in the cross-examination of Mangilal (P.W. 3) to create the doubt in the veracity in his statement. He is an independent and natural witness of the occurrence.
8. Laxminarayan (P.W. 5) and Rameshchandra (P.W. 6) have also testified as stated above. There is not an iota of evidence to damage the credibility of their statements.
Learned Counsel for the appellants have failed to point out any defect in the testimony of any of the eye witnesses. There is inherent consistency in the statements of eye witnesses Hiralal (P.W. 2), Mangilal (P.W. 3), Laxminarayan (P.W. 3) and Rameshchandra (P.W. 6) and their statements are consistent and inspire confidence.
9. The FIR Ex. P-20 was lodged at 8.15 p.m. and in the promptly lodged FIR, it is mentioned that the accused persons have caused the injuries to deceased. In the prompt FIR it is narrated that the accused have inflicted injuries to the deceased. It corroborates the prosecution case.
10. Dr. Ravindra Choudhary (P.W. 11) has found the following injuries on the dead body of Ramprasad :
(1) A contused abrasion 2.4 cm x 2 cm on the left parietal bone.
(2) A contused abrasion 3 cm x 1.2 cm on the right side of the scapular region.
(3) A contusion 3.8 cm x 2 cm on the left side of the scapular region.
(4) Hematoma on the middle of the skull.
In the internal examination of the deceased, Dr. Ravindra Choudhary (P.W. 11) has found 3 fractures of the parietal bone which has damaged the brain tissue and resulting into the death of the deceased. Dr. Ravindra Choudhary (P.W. 11) has slated in his cross-examination that looking to the nature of the injuries of the deceased, it was not possible to save his life. The post- mortem report Ex. P-8 fully corroborates the version of the 4 eye witnesses examined by the prosecution to establish the case.
11. It is contended by the learned defence Counsel that in the view of the single injury on the head and the facts and circumstances of the case the offence of causing the death with a deliberate intention punishable under Section 302 of the IPC is not made out.
12. Defence witness Rameshwar (D.W. 1) has stated that deceased Ramprasad was in habit of consuming liquor and he used to pick up quarrel under the intoxication. The version of Jagdish (D.W. 2) is that Ramprasad used to come in the market under the influence of liquor and he used to hurl abuses to the passers by.
13. Laxminarayan (P.W. 5) has stated in Para 2 that at about 12.00 in the afternoon Ramprasad was under the influence of liquor and he was abusing accused Badrilal and Prakash. Rameshchandra (P.W. 6) has also testified that at about 12.30 p.m. Ramprasad picked up quarrel with Badrilal and he was beaten by Ramprasad. The accused Badrilal has inflicted only one blow on the head of the deceased. There was nothing to stop accused to cause more injuries on the vital part of Ramprasad. Accused Badrilal has not acted mercilessly. The other injuries on deceased were simple in nature. The other 3 injuries were inflicted by accused Prakash and others. There is absence of motive to cause the murder of Ramprasad. The accused persons have caused the injuries on account of the quarrel which has taken place in the afternoon. Looking to the nature of the weapon and manner of causing the injuries and the number of the injuries caused, it can not be held beyond reasonable doubt that the accused had a deliberate intention to cause the death of the deceased. In the fact and circumstances of the case, it is clear that common intention was not to cause the death but to cause such bodily injuries which was likely to cause death. In similar circumstance in case of Preetam Singh v. Stale of Punjab, (2003) 12 SCC 549, the accused were convicted under Section 304 Part-I read with Section 34 of the IPC instead of Section 302 read with Section 34 of the IPC for 8 years. Thus, the offence punishable under Section 304 Part I read with Section 34 of the IPC is made out against the accused persons.
14. Consequently, the appeals are partly allowed. Appellants Prakash and Badrilal are convicted and sentenced for the offence punishable under Section 304 Part I read with Section 34 of the IPC for the rigorous imprisonment of 8-8 (eight – eight) years. The conviction and sentence of the appellants accused under Section 302 read with Section 34 of the IPC and the sentence of imprisonment for life and fine of Rs. 500.00 – Rs. 500.00 are set aside and reduced to RI of 8-8 years only. Appellants accused if on bail, be taken into custody to undergo the aforesaid sentence.