Atmaram & Ors vs State Of M.P

2. At about 4-4.30 p.m., when they reached near the said village, all of a sudden the accused persons namely Atmaram, Gokul, Vikram, Ramchandran and Umrao emerged from the fields having soyabean crop. They shouted that the deceased and his relatives had set their soyabean crop afire and therefore, they should be taught a lesson. The accused Ramachandra was armed with farsi, Gokul was carrying dharia and other three accused were having lathis. All these accused persons started assaulting Udayram (PW1) causing injury on his head, left hand and legs. Gokul (the deceased) and PW2 tried to intervene and protect Udayram. In this process, both these witnesses sustained a number of injuries caused by the accused with the help of the same weapons. The other witnesses present at the site, Gajrajsingh, Sardarsingh and Gokul did not interfere in the assault because of fear and silently slipped away.

3. Another witness, Pannalal, PW8, was working in the fields nearby. Upon being called by Rajubai, PW2, Pannalal came to the place of occurrence and seeing the deceased and witnesses in injured condition, Pannalal and one Prem brought the bullock cart of one Kanhaiya Balai. Thereafter, one Umrao Bai also joined them. They finally found a jeep on the road in which Pannalal, Prem and Umrao Bai took the injured persons to the Tarana Hospital where they were admitted. From the hospital, information was sent to the Police Station, Makdon on which basis, the Head Constable Chedilal Yadav, PW23, reached Tarana Hospital. On the basis of the statement of Udayram, PW1, Dehati Nalishi (Ex.P1) was recorded at about 6.20 p.m. on 6th November, 1993.

4. A case under Section 307 read with Sections 147, 148 and 149 of the Indian Penal Code, 1860 (for short ‘IPC’) was registered. All the three injured persons were subjected to medical examination by Dr. Anil Kumar Dubey, PW4, who issued their MLC reports, Ex.P2-A to P.4-A. Udayram and Rajubai were treated by the doctors. At about 7 p.m., the statement of Gokul was also recorded in the presence of the witnesses. Keeping in view the serious condition of Gokul, he was required to be transferred from Tarana Hospital to Civil Hospital, Ujjain for treatment. However, he died on the way at about 11.30 p.m. on 6th November, 1993 and his dead body was kept in the Civil Hospital, Ujjain. Information was sent to the Police Station, Makdon, whereafter an offence of Section 302 read with Section 149 IPC was added to the charges.

6. After registration of the offence, the investigating officer, PW26, Sohan Pal Singh Choudhary visited the spot of occurrence on 7th November, 1993, from where the blood stained earth, cycle and sandal of the deceased were seized and the spot map was prepared. On 8th November, 1993, all the accused persons were arrested. Upon their interrogation and in furtherance to their statements, the arms involved in the commission of crime were recovered and seized. These seized weapons were sent to forensic science laboratory for examination on 3rd December, 1993. The examination report was received on 8th December, 1993 and in terms of the Report, no blood stain was found, either in the soil or in the sealed farsi. The Investigating Officer submitted the charge sheet to the Court of competent jurisdiction. Upon committal, the accused were tried by the Court of Sessions.

9. Being aggrieved from the judgment of conviction and order of sentence passed by the Trial Court, the accused preferred an appeal before the High Court, which by its judgment dated 23rd January, 2008, confirmed the judgment of the Trial Court and also did not interfere with the order of sentence.

Accused Gokul hit my brother Gokul on the head with Dharia. Ramchand had hit after me, my brother Gokul with farsi on his head. The other accused started hitting my brother with lathi due to which my brother fell down and I was also attached with lathi. My sister Rajubai was also hit with lathi by accused Umrao. She had received injury on her hand and Rajubai also received injury on her foot.”

40. For all the foregoing reasons, we are of opinion that the High Court was in error in altering the conviction of the accused-respondent from one under Sections 302, 302/34, to that under Section 304, Part II of the of the Penal Code.

Accordingly, we allow this appeal and restore the order of the trial court convicting the accused (Respondent 2 herein) for the offence of murder, with a sentence of imprisonment for life. Respondent 2, if he is not already in jail, shall be arrested and committed to prison to serve out the sentence inflicted on him.” Reference can also be made to Anda & Ors. v. State of Rajasthan [AIR 1996 SC 148].

23. For these reasons, we are unable to accept the contention raised on behalf of the appellants that this is a case where the Court should exercise its discretion to alter the offence to one under Section 304 Part II or Section 326 IPC from that under Section 302 IPC. We also find the submission of the learned counsel for the appellants to be without merit that accused Gokul alone is liable to be convicted, if at all, under Section 302 IPC and all other accused should be acquitted. We reject this contention in light of the discussion above and the fact that all these accused have been specifically implicated by PW1 and PW2, the Investigating Officer, PW26 and the medical evidence.

24. Having found no substance in the pleas raised by the learned counsel for the appellants, we hereby dismiss the appeal.