KAILASH Vs. STATE OF M P

JUDGEMENT

(1.) The Appellant along with one Prakash and Babulal was prosecuted for commission of an offence under Section 302 of the Indian Penal Code. A First Information Report (FIR) was lodged by Nathuram (PW-1). He was the elder brother of the deceased Ramkishan, In the FIR, it was alleged that on 28.2.1986 at about 7.45 a.m. all the three accused persons armed with axe, lathi and musal came to their house. They asked the deceased Ramkishan not to construct wall on their land and to do so on their own. Ramkishan asserted that the land belonged to him whereupon the Appellant herein is said to have been given a blow by axe on his head. Babulal is said to have given a blow on the deceased by his musal on his chest. Savitri, wife of Nathuram (PW-3) allegedly rushed to save him. She allegedly was assaulted by Prakash by inflicting lathi blow on her head and shoulder.

(2.) A case was instituted against the accused persons named in the F.I.R, under Sections 324 and 506 of the Indian Penal Code. Ramkishan was taken to Gwalior Hospital for further treatment. He died on 2nd March, 1986, whereupon the offence was altered to one under Section 302 of the Indian Penal Code. In the post mortem examination only one injury was found to have been suffered by the deceased. It was, therefore, opined by the Trial Court that Prakash and Babulal had no role to play in the commission of the offence. They were, thus, acquitted. The State did not prefer any appeal there against. The Appellants appeal, however, before the High Court has been dismissed by the impugned judgment. The Appellant is, thus, before us.

(3.) Mr. Uday Umesh Lalit, learned senior counsel appearing on behalf of the Appellant would contend that no cut injury having been found by the doctor who conducted the autopsy and furthermore in view of the statement of PW-4 that Babulal had inflicted the injury on the head of the deceased, no case is said to have been made out for convicting the Appellant under Section 302 of the Indian Penal Code. In any event, having regard to the fact that the deceased suffered only one blow on his person in the course of a quarrel as a result whereof both the groups suffered injuries, only a case under Section 304, Part II should be held to have been made out. The case of the prosecution was involvement of not only the Appellant herein but also Prakash and Babulal. The learned trial judge opined that there was hardly any evidence against Prakash. Babulal who is said to have assaulted the deceased on his chest by a musal, which is a hard and blunt substance had since been acquitted by the learned Trial Judge as no such injury was found on the person of the deceased. The Appellant allegedly assaulted the deceased by the sharp side of the axe. It was so stated by PW-3 Savitri.