LALCHAND Vs. THE STATE OF CHHATTISGARH

JUDGEMENT

(1.) The Appellants stand convicted under Section 304 Part I IPC to life imprisonment with fine of Rs.1,000/ - each, in the event of failure to pay which they were required to undergo three months' further rigorous imprisonment, ordered on 28.9.2001 by the 1 st Additional Sessions Judge, Rajnandgaon in Sessions Trial No.44 of 1999.

(2.) FIR, Exhibit P -1 was lodged by PW -1, Mainabai, wife of deceased Kahatlal naming six persons including the Appellants. The accused and deceased were co -villagers. Their fields were adjacent to each other. The accused suspected the deceased and his family of stealing their crops. On 8.2.1999 when the deceased and his family were in their fields sitting by the bonfire, at about 8:30 pm the accused are stated to have come and assaulted them. Appellant No.2 is also stated to have suffered injuries. They were all taken to the hospital where the deceased succumbed at about 3:50 am on 9.2.1999.

(3.) Learned Counsel for the Appellants submitted that the deceased and his family were the aggressors who entered the field of the Appellants and would steal crops. The accused had acted in self defence evident from the injury report, Exhibit D -3 of Appellant No.2. Appellant No.1 had also stated in his defence under Section 313 Cr.P.C. that he had suffered injuries. PW -2, Dorelal and PW -3, Jitendra, both sons of the deceased, have also stated that Appellant No.1 was taken to the hospital along with Appellant No.2. It was therefore a case of either self defence or free fight. In both situations the nature of assault made cannot be measured in golden scales. The deceased did not die of any specific injury caused due to assault. Most of the injuries were bruises. PW -18, Dr. A.K. Tamrakar, who conducted the post mortem stated that considering the age of the deceased, the ribs may have broken because of the fall attributable to the low calcium in the body. No assault was made on any sensitive part of the human body such as the head. Death was attributable to breathing problems leading to the neurogenic shock. There was long standing enmity between the parties with some litigations also. If the accused had any intention to kill they had several opportunities in the past to do so. The Appellants therefore did not have any intention to kill. At best they may be stated to have the intention to teach a lesson to the deceased and his family for stealing crops. There is no material to conclude any intention to cause such injury which may cause death or was likely to cause death. The conduct of the Appellants in having taken the deceased and the injured to the hospital for treatment along with themselves militates against any intention to kill. Conviction under Section 304 Part I IPC was therefore not sustainable and at best if they are liable the conviction ought to be under Section 325 IPC which provides for a maximum imprisonment of seven years. Reliance was placed on AIR 1993 SC 2323 (Baijnath Mahton v. State of Bihar) that in the facts of the case sentence of two years shall suffice.