STATE OF M.P. Vs. RAWARAM

JUDGEMENT

(1.) BY this appeal is questioned the acquittal of the respondents under section 302, read with section 34, Indian Penal Code, fur causing the murder of one Kamal Singh. For the same incident, however" the respondents accused have been convicted under section 323, Indian Penal Code and have been sentenced to six months rigorous imprisonment and some fine. They have chosen not to challenge this conviction.

(2.) FOR the purpose of this appeal at this stage, it can be assumed that respondents were the holders and in cultivating possession of a filed in village Piplia Dhaker, police Station Umraoganj, District Raisen, where the incident took place on 23 -11 -1980. It is also on more in dispute that in the said incident Kamal Singh died. It also now needs no discussion to say that on the date of incident Kamal Singh had entered into that field against the wishes of the respondents and inspite of their protest. Even earlier Kamal Singh attempted to take his tractor and other agricultural implements across that field through a cart -track. It appears that because of this dispute, the relations between the parties were strained. The deceased insisted upon going through that field had almost adopted an obstinate attitude in that behalf. On the date of incident i.e. on 23 -11 -1980, at about 6.00 P.M. he again entered into that field after crossing the mend. On this he was assaulted by hard and blunt weapons. He fell down on the spot and ultimately died. Report of the incident was made at the police station at 7.30 P.M. by his brother Harayan Singh (P.W. 2). It is Ex. P -3. After due investigation, the challan was put up against the three respondents (respondent Rewarm being the father of the remaining two, namely Dulichand and Awadh Narayan). The plea of Rewarm and Dulichand was one of alibi. Respondent Awash Narayan's plea was that it while he was ercting a bagar (hedge) on the mend of his field, Kamal Singh came armed with a farsa and tried to break the bagar and assaulted Awadh Narayan, Awash Narayan's brother Bhagwan Singh came with a stick in his hand and then both of them beat Kamal Singh in right of private defence. At the trial, Kamal Singh (P.W. 1) did not support the prosecution but Narayan Singh (P.W. 2) and Ramswaroop (P.W. 3) stood firm and supported the case of the prosecution. The defence examined one Amarsingh as D.W. 1. The lower Court rejected the plea of alibi of Rewaram and Dulichand and held that all the three respondents were present on the spot at the time of the incident. It also held that all the three persons beat the deceased in their right of private defence of property. The right of private defence of person was denied. It has, however, been found that the respondents exceeded their right of private defence and since it was not certain as to who caused the particular injuries out of the many injuries including fractures found on the person of the deceased, it held each of them guilty under section 323, Indian Penal Code. The respondents rest content with this conviction and the state only appeals.

(3.) BEFORE considering the respective contentions raised in the appeal by the learned counsel for the parties, we may state that as respondents have not chosen to challenge their conviction, the scope of appeal becomes rather restricted. It will not be permissible for us now to look into other aspects of the matter which arose for consideration before the lower court at the time of trial. In State of Andhra Pradesh v. Thadi Narayan1 it was pointed out that where several offences are charged against an accused person the trial is no doubt one but where the accused person is acquitted of offences and convicted of others, the character of appellate proceedings and their scope and extent is necessarily determined by the nature of the appeal preferred before the appellate Court. This principle was applied by the Supreme Court in a subsequent case in Lakhan Mahto and others v. State of Bihar2 and it was observed that if an order of conviction is challenged by the convicted person but the order of acquittal' is not challenged by the State then it is only the order of conviction that falls to be considered by the appellate Court and not the order of acquittal. It would, therefore, follow that in a case where an accused is charged with several offences and convicted only for few, but does not chose to appeal and the State appeals against the acquittal on other charges, it will not be open in the appeal so preferred by the State against the acquittal to consider the property of conviction on other charges. Therefore, in the present case it has to be taken as finally decided that all the respondents were present on the spot, they participated in the incident and caused injuries to Kamalsingh. The limited scope of this appeal is to see whether the offence committed by the respondents would be murder punishable under section 302, I.P.C.