Jagannath vs State Of M.P

A First Information Report was lodged by one Dhoomsingh (PW-11) at Obeydullaganj Police Station on 16.09.1986 alleging that he and Ramsingh (since deceased) had collected pieces of wood from the bank of a river near their house, but the appellant and Prabhudayal, however, came there and committed theft thereof. An altercation took place. While the altercation was going on, Prabhudayal allegedly inflicted one axe blow on the head of the deceased causing an injury on his person. Two other prosecution witnesses, viz., Naval Singh (PW-2) and Hukumchand (PW-12) came to the scene of occurrence. They were also allegedly assaulted and consequently sustained injuries. The deceased while being taken to the police station breathed his last on the way.

2. Before the learned Trial Judge, the accused raised a defence that the deceased Ramsingh and Dhoomsingh (PW-11) accompanied by some other persons came to the house of Prabhudayal and asked his wife Kasturibai, who examined herself as DW-1, to serve them chicken and on her refusal to do so, they tried to outrage her modesty; injuries were caused to her in the process. A criminal case was instituted in that behalf. The incident is said to have taken place because of the said fact.

3. The learned Trial Judge, however, relying on the testimonies of the aforementioned witnesses and opining that they are injured witnesses, came to the conclusion that as the prosecution evidence was corroborated by medical evidence, the accused must be held to be guilty for the alleged commission of offence under Section 302 of the Indian Penal Code, and were sentenced to undergo rigorous imprisonment for life. An appeal preferred thereagainst by the accused has been dismissed by the High Court by reason of the impugned judgment.

4. Before embarking upon the questions raised before us, we may, however, notice that along with the appellant and the said Prabhudayal, one Dhan Singh was also prosecuted. He, however, was acquitted. The said judgment has not been questioned.

2), Dhoomsingh (PW-11) and Hukumchand (PW-12). As per these witnesses, both the brothers collected pieces of wood flowing in the river Barkhukhar because of the flood, which were taken away by all the accused. According to the said witnesses, therefore, they had committed theft. They wanted to take away the same back from their possession. They had stopped the accused from taking the same away, whereupon Prabhudayal hit Ramsingh with an axe blow on his head. Appellant is said to have hit PW-11 on his back.

10. While the incident was going on, Naval Singh (PW-2) came to the spot. PW-2 was in his field which was at a distance of about one furlong from the place of occurrence. According to him, the deceased was being assaulted by all the three accused with axe and spear which were in their hands. Prabhudayal on his intervention is said to have caused an injury on the left temple of Naval Singh. It may be noticed that even PW-11 did not attribute any overt act on the part of the appellant herein so far as the deceased Ramsingh was concerned.

14. Concededly, the occurrence took place all of a sudden. The act of theft on the part of the accused persons was complete. They had been taking away the wood. They were followed by the deceased and PW-11. They must have been obstructed from taking away the wood by them as the same were in their possession. It was at that juncture the deceased was said to have been assaulted by Prabhudayal and Dhan Singh. In a situation of this nature where the accused persons had acted at the spur of the moment having regard to the altercations which had preceded the incident, in our opinion, it is difficult to lead to the conclusion that Prabhudayal and the appellant had developed a common intention of causing death of the deceased. If the statements of the prosecution witnesses PWs 2, 11 and 12 are to be believed, they acted almost at the same time. We may notice that the third accused Dhan Singh has been acquitted. The State has not preferred any appeal thereagainst. The High Court has also convicted Prabhudayal under Section 302 of the Indian Penal Code holding that the same was his individual act. In this situation, we are of the opinion that it is difficult to uphold the contention of Ms. Makhija that the appellant is guilty under Section 302/34 of the Indian Penal Code.

(3) Contused injury on the wrist of left hand <"

20. Injuries caused to Naval Singh and Hukamchand were also simple in nature. In view of the nature of injuries caused by the appellant, he cannot be held to be guilty of commission of an offence under Section 302/34 of the Indian Penal Code. We, therefore, are of the considered view that the appellant is guilty of commission of an offence under Section 326 of the Indian Penal Code and not under Section 302/34 thereof.

21. Keeping in view of the facts and circumstances of this case, we are of the opinion that imposition of a sentence of 10 years Rigorous Imprisonment under the aforementioned provision shall meet the ends of justice. The Appeal is allowed in part and to the extent mentioned hereinbefore.