2 Cr.A. No.14 of 1998The prosecution case, in brief, is that on the day of incident 30.05.1997 in the mid afternoon during marriage celebration of one Kalia's son at village Kasmar Khandi some scuffle took place between the accused and Champalal.The matter was settled by mediators.At the time of incident at 5:00 p.m. when Champalal was returning to his house with his nephew Shobha and reached near the one Jariya's house there at from behind the shrubs the accused and his brother Banshi @ Lakhan were came out with deadly weapons, Hari Shankar was also standing at some distance.The accused and Banshi started given blows to Champalal and Shobha.The accused given a lathi blow on temporal region of head of Shobha who felt down, succumb to injury.Banshi also gave one blow of lathi to Shobha.Then accused and Banshi also beaten Champalal and caused injuries on his person, then left the spot.The dead body of Shobha was lying down on field.The Champalal came to village and informed the matter to Kotwar Shekhlal and next day i.e. 31.05.1997 Champalal reported the matter Police Station, Betul, situated 50 kms away.Shri P.R. Bhave, learned Senior Advocate with Shri Bhanu Pratap Yadav, Advocate for the appellant.Shri Samdarshi Tiwari, learned Government Advocate for the respondent/ State.Judgment reserved on : 26.07.2013 Judgment delivered on : 07.10.2013 (JUDGMENT) In this appeal preferred under Section 374(2) of the Code of Criminal Procedure the appellant, hereinafter referred to as "the accused", has called in question the soundness of the judgment passed by the learned First Additional Sessions Judge to the Sessions Judge, Betul in the Sessions Trial No.173/97, whereby the learned trial court has recorded a conviction against the accused under Sections 304 part II and 323 of the Indian Penal Code and sentenced him to undergo the rigorous imprisonment for 8 years and 6 months respectively.However, both the sentences were run concurrently.On the basis of this First Information Report lodged, the investigating agency registered a crime.Champalal was sent to medical examination to the hospital.The investigating agency got the autopsy done of the deceased, prepared spot map, seized lathi at the instance of the accused and examined number of witnesses including Champalal under Section 161 of the Cr.P.C. After conducting the inquiry, the investigating agency placed the charge-sheet before the competent Magisterial Court who committed the case to the Sessions Judge, Betul on his turn transferred the case for trial before the learned Trial Judge.3 Cr.A. No.14 of 1998The learned Trial Judge framed charges against the accused Patiram and his other two aids accused Banshi @ Lakhan and Hari Shankar punishable under Sections 302, in alternate 302/34, 323 in the alternative 323/34 of the Indian Penal Code.Accused persons denied the charges and pleaded innocence, therefore, put to trial.Champalal (PW/10) injured witness in the incident and maker of the FIR (Ex.P-15).Eye witnesses Sabulal (PW/9) and Gangabai (PW/1) is mother of Shobha.Kalia (PW/3) in whose son's marriage scuffle held between accused and Champalal.Kotwar Shekhlal (PW/2), Hariram Yadav (PW/5) are punch witnessed, Dr. B.L. Kushwaha (PW/6) is conducted postmortem on the dead body of Shobha.Constable Mallu Singh (PW/7) Head Constable Rajanlal (PW/8) are investigation officers.Shri H.N. Mehar (PW/11) is the main investigation officer who conducted the investigation and seized lathi from the accused on his information under Section 27 of the Evidence Act.The statements recorded under Section 311 of the Cr.P.C. the accused persons denied all the evidence which putforth before them and pleaded innocence as well as false implication.The defense does not choose to examine any evidence.The learned Trial Judge on the basis of ocular and documentary evidence recorded conviction and imposed punishment against the accused Patiram as has been indicated herein above.But acquitted Banshi @ Lakhan and Hari Shankar from the charges punishable under Sections 302, in alternative 302/34 and 323 in 4 Cr.A. No.14 of 1998 alternative 323/34 of the IPC, against which the respondent State does not file any appeal.4 Cr.A. No.14 of 1998Shri P.R. Bhave, learned Senior Counsel for the appellant argued that as per postmortem report cause of death is injury on temporal region of head, however, the witnesses have failed to narrate that this injury caused by the accused by lathi.Other injuries, fracture of second and third ribs were also not explained by the witnesses who inflicted these injuries.Scrutiny of statement of prosecution witnesses raises doubt about their evidence.It appears that because of the earlier incident the accused gave two slaps to Champalal, the witnesses have presumed that the accused given beaten to allowing this appeal, therefore, the accused may be acquitted.Shri Samdarshi Tiwari, Government Advocate for the respondent/State has submitted that the prosecution has proven the assault by the accused as the injured eyewitness Champalal have totally stood embedded and nothing has been elicited to discredit this witness.It is further submitted that learned trial court did not commit any error while passing the impugned judgment hence; this appeal deserves to be dismissed.The facts that deceased sustained injuries in the evening on 30.05.1997 and died a homicidal death on account of the said injuries where neither in dispute before the learned trial court nor are under challenge in this appeal.That apart, there is overwhelming ocular and medical evidence on record which is more than sufficient to establish the above facts beyond any shadow of doubt.Dr. B.L. Kushwaha (PW/6) conducted autopsy on the dead body and vide his postmortem report Ex.P-13 opined that injury caused on temporal region of Shobha's head 5 Cr.A. No.14 of 1998 and other injuries were cause of death.As per query report Ex.P-14, Doctor also given opinion that injury found on head of the Shobha can be inflicted by lathi in question, which was seized vide memo (Ex.P-5) on information given by the accused.Champalal was also medically examined by the Doctor and vide MLC report (Ex.P-12) he found injuries on person of Champalal.5 Cr.A. No.14 of 1998Therefore, upholding the findings recorded by the learned trial court in that behalf injured eyewitness Champalal (PW/10) has deposed that on the fateful day the accused and others were consuming liquor on the eve of the marriage of Kalia's son and prior to the main incident in the afternoon the accused and he indulged in a quarrel and during that the accused given him slaps and he also reacted.He further stated by mediation the matter was settled then and there.Kalia (PW/3) also supported these facts.About main incident Champalal (PW/10) has categorically deposed that in the evening when he was returning to his home with Shobha and reached near the house of Jadiya thereon behind the shrubs the accused appeared with Banshi, both having lethal weapons and started beating them.He also stated that the accused given a lathi blow on the head of Shobha so he felt down and died instantly.He stood firm in his cross-examination and nothing could be elicited by the defence which may discredit his evidence.Nothing has been elicited in the cross examination to discredit his testimony.I do not find any earthly reason for this witness to depose falsely against the accused.Champalal (PW/10) unequivocally and categorically stated about the genuineness of occurrence, development and the voluntarily assault by the accused.6 Cr.A. No.14 of 19986 Cr.A. No.14 of 1998Gangabai (PW/1), Shekhlal (PW/2), Kalia (PW/3), Sukhlal (PW/4), Sabulal (PW/9) also deposing in line with the evidence of Champalal (PW/10) stated that it was accused who after the course of sudden wordy quarrel in the afternoon with the Champalal caused injuries to deceased Shobha by means of lathi, resulting in his death, when Shobha and Champalal were returning to their home in the evening.Nothing substantial could be brought out by the defence in their cross examination which may referred their evidence unworthy of credence.On a close scrutiny of eyewitness account of eyewitness on account of Champalal (PW/10) and other witnesses Gangabai (PW/1), Kalia (PW/3), Sukhlal (PW/4), Sabulal (PW/9), I do not find any infirmity whatsoever in their evidence they are truthful witness and there evidence has rightly been relied upon by the learned trial court in holding accused Patiram guilty of causing that injury on the head of deceases Shobha by means of lathi blow, which ultimately resulted in his death.The next question crops up for reconsideration in this appeal are about the nature of the offence proved against the accused Patiram and punishment for it.The intention of the assailant, the weapon used, repetition of assault, amount of force applied and certain other factors are important to decide the matter.It is agreed fact that the accused had inflicted a single blow.It is also come in the evidence of Champalal (PW/10) and other witnesses including Gangabai (PW/1), mother of the deceased that there has been no previous enmity.There is no criminal antecedent of the accused.Since his arrest on 01.06.1997 to 15.07.1998 the accused was under custody.7 Cr.A. No.14 of 19987 Cr.A. No.14 of 1998It is perceivable from the evidence that the accused had no intention of causing murder of the deceased because his main intention of causing injuries to the Champalal and nor there was any ill feeling or enmity between the deceased and the accused.The quarrel ensued without any kind of prior preparation and singular blow was given by way of lathi which is carried by every villager in normal course of life.It is not disputed before me that the death of the deceased was due to the injury.This is also perceivable from the ocular evidence brought on record which gets corroboration from the medical evidence.On cumulative consideration of above mentioned features brought on the record, I find it is more than sufficient to hold with certainty that accused Patiram while causing injuries on the head of deceased had intended to cause death of Shobha.Therefore, uphold the findings recorded by the learned trial court in this behalf.In view of the aforesaid, I am of the considered opinion that substantive sentence should be confined to the period already undergone in respect of the offence punishable under Section 304 Part II of the I.P.C. with a further stipulation that accused Patiram shall pay the compensation of Rs.50,000/- (fifty thousand) to Gangabai (PW/1), the mother of Shobha.The said amount shall be deposited before the learned Trial Judge within a 8 Cr.A. No.14 of 1998 period of 3 (three) months from today.The learned Trial Judge on proper identification shall pay the said amount to Gangabai.If accused Patiram fails to deposit the aforesaid amount, he shall suffer total rigorous imprisonment of 3 years, for which he will be entitled to set off his period of custody already undergone.No further sentence for Section 323 of I.P.C. is required separately in both the situations.8 Cr.A. No.14 of 1998Accordingly, this appeal is allowed to the extent indicated above.Appeal partly allowed.(Subhash Kakade) Judge AK/-

Sections cited: Section 304 in The Indian Penal Code, Section 323 in The Indian Penal Code