1 HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR SINGLE BENCH Criminal Appeal No.146/1996 Ram Naresh Tiwari, aged about 47 years, s/o Krishna Mani Tiwari, Occupation: Agriculture, r/o Majhiyar, P.S. Rampur Baghelan, Satna, district Satna. versus The State of Madhya Pradesh ------------------------------------------------------------------------------------------------ For the appellant: Shri Sharad Verma, Advocate with Shri Hemant Sen, Advocate For the Resp./State: Shri Yogesh Dhande, Dy. Government Advocate. ------------------------------------------------------------------------------------------------ ------------------------------------------------------------------------------------------------ PRESENT: HONOURABLE SHRI JUSTICE RAKESH SAKSENA --------------------------------------------------------------------------------------------- J U D G M E N T (11.10.2011) Appellant has filed this appeal against the judgment dated 17th January 1996, passed by III Additional Sessions Judge, Satna, in Sessions Trial No.41/1991, convicting him under Section 304-II of the Indian Penal Code and sentencing him to rigorous imprisonment for five years with fine of Rs.200/-. In default of payment of fine, further simple imprisonment for 15 days. 2. In short the prosecution case is that the appellant, other accused persons viz. Krishna Mani Tiwari, Narayan Prasad, Kamlesh Prasad and the complainant Damodar Prasad belonged to same family. Appellant and complainant Damodar Prasad were real brothers being sons of accused Krishna Mani Tiwari. Since Krishna Mani Tiwari died on 30.10.1992, his name was removed from the array of accused persons. It is said that there was a dispute between the two parties over the partition of ancestral property. 2 3. On 19.1.1991, at about 7.00 pm, when Babbu @ Bhuvneshwar (deceased) alongwith his father Damodar was coming back to his house after attending a programme of loan distribution, suddenly all the four accused persons surrounded and assaulted them with Lathi and spear. Appellant/accused Ram Naresh dealt a blow by spear on the head of deceased, as a result of which he suffered injury on his head and before he could be provided treatment, he succumbed to his injury. Hearing hue and cry, Rajeshwari (PW-2) and Parvati Devi (PW-6) reached at the spot and tried to intervene, but they were also assaulted. 4. The first information report (Ex.P/1) of the incident was lodged by Damodar Prasad (PW-1) at Police Station, Rampur Baghelan. After inquest proceedings, dead body of deceased was sent for postmortem examination to District Hospital, Satna, where Dr. C.S. Tiwari (PW-11) conducted postmortem examination of the body. The injuries of Damodar, Rajeshwari and Parvati Devi were examined by Dr. Manik Chand Gupta (PW-10). 5. Vide postmortem examination report Ex.P/22, Dr. C.S. Tiwari (PW-11) found one lacerated wound measuring 6 x 3 cm x bone deep on the vertex of deceased. There was a fracture of parietal bone of deceased. He also found extra dural haematoma on the left fronto parietal and right temporo parietal region. The cause of death of deceased was coma due to injury on the skull resulting in fracture of the skull bone. 6. Defence of the appellant and other accused persons was that deceased and his father viz. Damodar entered the house of Krishna Mani and pulled him out. They also assaulted Krishna Mani due to which he suffered injuries. In protecting him, suddenly deceased suffered a blow on his head, as a result of which he died. Dr. D.K. Tiwari (DW-1) and Gulli (DW-2) were examined in defence. 3 7. Learned trial court, after appreciating the evidence on record, held the appellant guilty of the offence under Section 304-II of the Indian Penal Code. However, finding no offence established against the other accused persons acquitted them. 8. Learned counsel for the appellant did not challenge the conviction of the appellant on merits. He, however, submitted that in view of the fact that incident had occurred suddenly between the members of the family and only one injury was caused on the head of deceased, the sentence of appellant deserved to be reduced. From the record, learned counsel pointed out that appellant has already suffered actual jail sentence for a period of about three years and two months. He also placed reliance on the judgment of Apex Court rendered in Madhusudan Satpathy and others v. State of Orissa-AIR 1994 SC 474. On the other hand, learned counsel for the State submitted that the conviction and the sentence awarded to appellant did not call for any interference. The sentence of five years rigorous imprisonment, in the facts and circumstances of the case, could not be said to be excessive. 9. I have heard the learned counsel for the parties and perused the the evidence on record. 10. On perusal of the evidence of Damodar Prasad Tiwari (PW-1), Rajeshwari (PW-2) and Parvati Devi (PW-6), it appears that while Damodar Prasad and his son Bhuvneshwar (deceased) were coming back to their house, as soon as they reached near the Well situated in front of the house of Damodar Prasad, appellant alongwith Krishna Mani Tiwari, Narayan Prasad and Kamlesh Prasad confronted them and indulged in altercation. In the course of altercation, suddenly appellant dealt a blow with spear on the head of Bhuvneshwar. When Damodar Prasad and other witnesses tried to save him, they were also assaulted by other accused persons. On perusal of evidence of 4 Damodar Prasad (PW-1), it is apparent that accused Krishna Mani was his father and appellant was his real brother. There had been a dispute between them about the partition of land and house. A criminal complaint was also pending between them in the court. Damodar Prasad denied that he entered the house of appellant and assaulted Krishna Mani Tiwari. The same story was repeated by Rajeshwari (PW-2), the sister of the deceased. According to her, appellant inflicted blow by spear on the head of deceased. Parvati Devi (PW-6), the mother of deceased, admitted that on the report of her father-in-law, a criminal case was registered against her son and husband and that there had been enmity between the two parties over the property. 11. From the evidence of Dr. C.S. Tiwari (PW-11), it is proved that deceased had suffered a lacerated wound measuring 6 x 3 cm x bone deep on the vertex. The injury had a fracture of the parietal bone. Except one injury on the head, no other injury was found on the body of deceased. 12. Learned counsel for the appellant submitted that though for the same incident accused persons had also lodged report with the police, but no action was taken. Krishna Mani had suffered injuries at the hands of complainant party. He was sent for medical examination, but his medical report was not put up with the charge sheet. Learned counsel drew my attention to the statement of investigating officer Yogendra Singh (PW-12) wherein he stated that no report, before him, was lodged by the accused party, but, after about one and a half year, a criminal case was registered by CID police against Damodar Prasad Tiwari. He also admitted that at the time of occurrence Krishna Mani had also suffered injuries and he had sent him for medical examination. Medical examination report of Krishna Mani was produced from the case diary and proved as Ex.D/4. PW-12 stated that Rojnamcha in which he mentioned reference of Krishna Mani for medical examination was 5 destroyed after prescribed period. Dr. D.K. Tiwari (DW-1) deposed that he found fracture of the left hand radius bone of Krishna Mani Tiwari. He gave his report Ex.D/5 in that regard. 13. On appreciating the above evidence, I find that the evidence of prosecution witnesses is cogent and reliable. The trial court committed no error in holding the appellant guilty of the offence under Section 304-II of the Indian Penal Code. Accordingly, the finding of conviction of appellant under Section 304-II of the Indian Penal Code is affirmed. 14. The next submission made by learned counsel for the appellant is about the reduction of sentence of appellant. Learned counsel submitted that the incident occurred in the year 1991. Both the parties in the incident were the members of one family. The deceased was the nephew of appellant. Admittedly the incident occurred suddenly after some altercation. The allegation against the appellant though was that he inflicted a blow by spear, but no injury on the head of deceased was found by any sharp edged or pointed weapon. During investigation, police seized an iron pipe from the possession of appellant. In these circumstances, the sentence of appellant deserved to be reduced to the period of sentence already undergone by him, which comes about three years and two months. In case of Madhusudan Satpathy (supra), where the appellant was convicted under Section 304-II of the Indian Penal Code, considering the fact that there was only one injury on the head that proved fatal and the other injuries were found to be simple and the weapons used were not deadly, the sentence of appellant was reduced from six years rigorous imprisonment to three years rigorous imprisonment. I find substance in the submission made by the learned counsel for the appellant. Accordingly, the sentence of five years rigorous imprisonment imposed upon the appellant by the trial court is reduced to the period of 6 sentence already undergone by him. Sentence of fine is affirmed. 15. Appeal partly allowed. (Rakesh Saksena) Judge Shukla