SUSHIL KUMAR Vs. STATE OF M.P.

JUDGEMENT

(1.) THE appellant No.1 Sushil Kumar has been convicted for committing an offence u/s 307/34 IPC and sentenced to four years' R1. The appellant No. 2 K. Sunderrao has been convicted u/s 307 IPC and sentenced to four years' R1. Aggrieved thereby, they have preferred the present appeal. As per the prosecution case, both the accused were serving the Railway Department, at Bilaspur. The complainant Shankerlal (PW 1) is Porter (Khalasi) in IOW Construction Office and S.K. Bhattacharya is Clerk in the said office of Railway Department. The appellant No.1 Sushil Kumar was driver and K. Sunderrao (Appellant No.2) was Helper in the Railway Department at Bilaspur. In the month of May, 1988, accused Sushil Kumar had asked Shankerlal for giving Tarpolin which he refused and on that account, a little altercation took place between them. Thereafter, on the date of the incident i.e. 26.8.88, the complainant Shankerlal, after getting the cement bags unloaded from the truck in Godown, had come to report of unloading, to the clerk S.K. Bhattacharya. At that time, both the accused -appellants were sitting outside the office. When the complainant Shankerlal came out after reporting the unloading, accused persons abused him. Shankerlal did not pay any head to them. Thereafter, K. Sunderrao repeated the abuse and told that whether he was taking him to be a person like Sushil Kumar and K. Sunderrao stood up, caught hold of his hand and felled him down. Thereafter, K. Sunderrao sat on his chest and caught hold of his head with both of his hands and repeatedly dashed his head on the earth. Sushil Kumar was standing and was abusing. Bhattacharya tried to intervene. Sushilkumar abused him. Shankerlal became unconscious for sometime. Thereafter, both the accused went away, leaving Shankerlal there. Other employees of the Railway Department viz PW 3 Amitabh Sarkar and PW 1 P. Chillaiya also reached there. Rickshaw was requisitioned and Shankerlal was taken to the Railway Hospital. Hospital authorities moved the police. S.S. Singh (PW 8) Sub Inspector reached Hospital and recorded Dehati Nalishi -Ex. P.1 on the basis of which, an offence u/s 294, 506 and 323 IPC was registered. Later on, after medical examination report, on 28.8.88 offence u/s 307 IPC was added. Sushil kumar and K.Sunderrao were arrested; and on medical examination of Shankerlal, Dr. S.K. Khanra (PW 6) as per his report Ex. P -4, found -

(2.) ABRASION in the inner side of the lips and mouth. Abrasion and swelling on the back of the head. SLIGHT swelling and abrasion on the right side of back of the head. X -ray was advised. Dr. R.K. Jha (PW 7) performed the medical examination and submitted his opinion on the basis of X -ray report Ex. P -7 -A and P -7 -B that there was dislocation of atlas on axis and fracture of neural arch of axis. Shankerlal was admitted in the hospital on 26.8.88 and he was discharged on 9.12.88. Accused abjured the guilt and contended that they were falsely implicated in the case.

(3.) LEARNED counsel for the appellants Shri Munish Saini submitted that it is a case where no offence u/s 307 IPC is made out. Accused K. Sunderrao was not armed with any weapon. He submitted that it is a case where the incident appears to have taken place suddenly and as per the prosecution allegations, K. Sunderrao had felled him (Shankerlal) down and on account of this, Shankerlal appears to have sustained injuries on account of that fall. Thus, according to him, it is, at the most, a case u/s 325 IPC and not the one u/s 307 IPC because, intention was not to cause death and the accused was not having the knowledge that his such act would cause the death of Shankerlal. With respect to the appellant Sushil Kumar, submission of the learned counsel is that in the circumstances the incident has taken place outside the office at the spur of moment, when Sushil Kumar was sitting outside the office alongwith K. Sunderrao. It was K. Sunderrao who was alone responsible for the injuries sustained by the complainant Shankerlal. Appellant Sushil Kumar was not sharing in the act of K. Sunderrao excepting abusing. Learned counsel for the State supported the judgment passed by the Court below and has submitted that it is a case where the injury of serious nature was suffered by Shankerlal who has been hospitalized for a considerable period. Thus, offence u/s 307 is made out. The medical evidence on the record goes to show that there were three injuries suffered by the injured Shankerlal (PW 1). The injury has been opined by Dr. R.K. Jha (PW 7) as grievous and also dangerous to life. He has deposed that at times patient dies immediately on sustaining such fracture on cervical region, and at the same time, Doctor has opined that the injury could also be caused by a fall. According to him, if a person who falls down, he can suffer such an injury. Dr. S.K. Khanra (PW 6) had initially examined the injured and he suspected fractures. He has also deposed that when a person falls on a rough surface with pieces of stones spread over it and some one sits on the chest of such fallen person then that person may receive injuries on his back also. Shankerlal (PW 1) injured himself has deposed that he was working as porter (Khalasi) in the Railways and had informed S.K. Bhattacharya regarding unloading of the cement bags in the godown. He say two accused persons sitting on the platform outside the office. When he came out, the accused persons abused him but he did not pay any heed to them. When they repeated abusing, he asked them as to whom they were abusing and why. On this, K. Sunderrao told him whether he considers him to be a person like Sushil Kumar. K. Sunderrao then caught hold of hand and felled him down. There were several stones on the ground on which he fell. After he fell down, K. Sunderrao sat on his chest, caught hold of his head by his hands and dashed his head against the earth. In the meantime, Sushil Kumar (appellant No.1) and inflicted blows by his leg. He has stated that K. Sunderrao has dashed him six to seven times against the earth. There is minor contradiction whether K. Sunderrao caught hold of the complaintant by his collar or caught hold of his hand but the same is not of much consequence. Shankerlal's deposition has been corroborated by S.K. Bhattacharya (PW 2) also. He has deposed that both the accused were sitting outside the office from before. When Shankerlal came out of the office, K. Sunderrao uttered that the complainant should not consider him to be Sushil and he would set him right. From this, it appears that the accused persons were already present there and as mentioned in the FIR, there was some hot exchange of words and K. Sunderrao stated that the complainant should not consider him to be a feable person like Sushil Kumar and he is a person not to tolerate him and would set him right. This witness has further stated that there was hot exchange of words first between the complainant and the accused K. Sunderrao. Thereafter, he went inside his room. Then, he heard the noise of Shankerlal to help him. Then he came out. Shankerlal was lying and K. Sunderrao was beating him and dashed his head against the earth. He asked accused K. Sunderrao not to repeat it. Sushil Kumar asked him to run away. Thereafter, he went away. Thereafter he arranged for sending the injured to hospital. The witness was unable to say as to how many times head was dashed against the earth, by K.Sunderrao.