KAILASH Vs. STATE OF M.P.

JUDGEMENT

(1.) THE appellant along with one Prakash and Babulal was prosecuted for commission of an offence under section 302 of the Indian Penal Code. A first information report (FIR) was lodged by Nathuram (PW 1). He was the elder brother of the deceased Ramkishan. In the FIR, it was alleged that on 28.2.1986 at about 7:45 a.m. all the three accused persons armed with axe, lathi and musal came to their house. They asked the deceased Ramkishan not to construct wall on their land and to do so on their own. Ramkishan asserted that the land belonged to him whereupon the appellant herein is said to have given a blow by axe on his head. Babulal is said to have given a blow on the deceased by his musal on his chest. Savitri, wife of Nathuram (PW3) allegedly rushed to save him. She allegedly was assaulted by Prakash by inflicting lathi blow on her head and shoulder.

(2.) A case was instituted against the accused persons named in the FIR under section 324 and 506 of the Indian Penal Code. Ramkishan was taken to Gwalior Hospital for further treatment. He died on 2nd March, 1986, whereupon the offence was altered to one under section 302 of the Indian Penal Code. 3. In the post -mortem examination only one injury was found to have been suffered by the deceased. It was, therefore, opined by the trial Court that Prakash and Babulal had no role to play in the commission of the offence. They were, thus, acquitted. The State did not prefer any appeal thereagainst. 4. The appellant's appeal, however, before the High Court has been dismissed by the impugned judgment. The appellant is, thus, before us. 5. Mr. Uday Umesh Lalit, learned senior counsel appearing on behalf of the appellant would contend that no cut injury having been found by the doctor who conducted the autopsy and furthermore in view of the statement of PW4 that Babulal had inflicted the injury on the head of the deceased, no case is said to have been made out for convicting the appellant under section 302 of the Indian Penal Code. In any event, having regard to the fact that the deceased suffered only one blow on his person in the course of a quarrel as a result whereof both the groups suffered injuries, only a case under section 304, Part II should be held to have been made out. 6. The case of the prosecution was involvement of not only the appellant herein but also Prakash and Babulal. The learned trial Judge opined that there was hardly any evidence against Prakash. Babulal who is said to have assaulted the deceased on his chest by a musal, which is a hard and blunt substance had since been acquitted by the learned trial Judge as no such injury was found on the person of the deceased. 7. The appellant allegedly assaulted the deceased by the sharp side of the axe. It was so stated by PW3 Savitri. 8. PW1 Nathuram and PW2 Nandkishore were declared hostile. PW4 Ramsakhe was also declared hostile when he deposed that Babulal had caused head injury to the deceased by musal. 9. The learned trial Judge as also the High Court principally relied on the testimony of PW3 Savitri. She was stated to have injuries. According to her, there was hot exchange of words as regards construction of the wall. According to her, after the assault by axe on the head of the Ramkishan allegedly caused by the appellant, he although fell down, Babulal inflicted a musal blow on his chest due to which only he became unconscious. She further stated that Prakash came from behind and inflicted lathi blows on his back as a result whereof also he became unconscious. He allegedly started vomiting blood and bleeding from his head also started. On her intervention as also that of Ramsakhe, Nandkishore, Nathuram, Prakash is said to have inflicted a lathi blow on her head. She also in her crossexamination accepted that she had not seen whether Prakash gave a lathi blow to the deceased or not. 10. It, however, appears that Babulal had also suffered an injury. A case was registered in relation thereto. The injury on the person of Babulal has not been explained by the prosecution. The fact that there had been quarrel between the parties is accepted. Although the accused persons were charged for commission of an offence under section 323 of the Indian Penal Code for causing injury on Savitri, they were acquitted of the said charge. 11. Two doctors examined the deceased and treated him. According to Dr. C.M. Tripathi PW 11, a fracture was found in the bone of left temple of Ramkishan as was evident from the X -ray taken for that purpose. According to him, such an injury may be caused due to fall on or colliding with a solid object. PW12 is Dr. H.P. Jain. He, however, in his deposition stated that the deceased suffered a cut injury. He found the following injuries on the body of the deceased Rarnkishan :