KAILASHCHANDRA GAVLI Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This criminal appeal has been filed under Sec. 374(2) of Cr.P.C. against the judgement dtd. 9/2/2012, passed in Sessions Trial No.215/2009 by Additional Sessions Judge, Agar, District Shajapur (MP) whereby finding the appellant guilty, the learned Judge of the trial Court has convicted him under Sec. 302 of IPC and sentenced to undergo rigorous imprisonment for life with fine of Rs.5,000.00 and in default of payment of fine further undergo three months simple imprisonment.

(2.) In brief, the facts giving rise to the present appeal are that on 10/6/2009 at around 11 O' clock in the morning the incident took place at Master Colony, Agar in front of Sodan Singh's house wherein the deceased Suresh was murdered by assault on his head by spade (Fawda). In the incident one Kuldeep was also assaulted, hence, initially the FIR under Sec. 307, 294, 323, 506/34 of IPC has been registered, however, after the death of Suresh, Sec. 302 was also added. The case of the prosecution is that earlier, deceased Suresh had sold a plot to Sodan Singh, but later on Sodan Singh came to know that the plot is disputed, hence, Suresh told him that he would get the boundary wall constructed on the said plot and on the date of incident i.e. on 10/6/2009, when the boundary wall was being constructed, the appellant approached the spot and objected to the construction of the boundary wall, when this was intimated to the deceased Suresh, he reached on the spot along with his son Kuldeep, which led to scuffle between the parties in which appellant Kailash assaulted the deceased with a spade (Fawda) on his head and other two persons were also assaulted Suresh and Kuldeep. Suresh was taken to the Agar Hospital and the matter was reported to the police. Subsequently, Suresh was taken to Dewas, where he died while being treated. After the charge-sheet was filed, the learned Judge of the trial Court recorded the evidence and convicted the appellant under Sec. 302 of IPC while other co- accused persons, namely, Amit and Rakesh were acquitted. Hence this appeal.

(3.) Shri Girish Desai, learned counsel appearing for the appellant has submitted that the appellant has been falsely implicated in the case and even otherwise it is not a case falling under Sec. 302 IPC as it is a case of property dispute as the appellant happens to be the real brother of the deceased Suresh who had sold the family property to Sodan Singh without their being any partition and thus, at the most the case would fall under the exception of right of private defence of property extending to causing death. It is also submitted that the appellant has also suffered injuries on his head and there is no explanation about the same in the charge-sheet.