KANGALU Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) The Appellants stand convicted under Section 302/34 IPC to life imprisonment with fine of Rs. 5000/- each, in the event of failure to pay which, they were required to undergo one year further rigorous imprisonment as ordered on 2.2.1999 by the Third Additional Sessions Judge, Bastar, in Sessions Trial No. 32 of 1998.

(2.) The deceased Vijay Shanker Tiwari @ Bam Tiwari is stated to have been assaulted at the Kondagaon bus stand by the Appellants on 25.10.1997 at about 9:50 p.m. 'Dehati Nalishi' was lodged immediately by PW-1 Vijay Nayker stating that while he and the deceased were at the bus stand, the Appellants Kangalu and Sadik accompanied by a third unnamed came. Appellant Kangalu assaulted the deceased with a rod and Appellant Sadik assaulted with a knife. The witness tried to intervene, he was assaulted on the head with an iron rod by Appellant Kangalu. Formal FIR, Exhibit P-15, was registered the same day in which the witness again named Appellants Kangalu and Sadik accompanied by an unnamed third. The post-mortem of the deceased, Exhibit P-13, conducted by PW-8 Doctor S. Lonhare disclosed 12 incised injuries over different parts of the body, one lacerated wound on the right elbow and one abrasion on the occipital lobe of the skull caused by hard-blunt object opining that the death was homicidal in nature due to shock and excessive hemorrhage approximately 12:00hrs earlier.

(3.) The common submission on behalf of the Appellants was that there was no intention or pre-meditated design reflected for killing the deceased. Events took place on the spur of the moment, preceded by a verbal duel and scuffle after the parties suddenly met each other at the bus stand. They were all well known to each other from before. Since it was an assault made on the spur of the moment without premeditation on grave and sudden provocation and in retaliation, the conviction under Section 302/34 IPC was not justified. Appellant Sadik also suffered injuries. His MLC was proved by PW-7 Dr. S.K. Kanwar. There was an incised wound on the left wrist, right index finger, two incised wounds on the right index finger. The first was grievous. The fact that the latter two were simple does not detract from the position that he attacked when he was assaulted.