SHIV KUNDAL Vs. STATE OF M.P.

JUDGEMENT

(1.) THE Appellants Shiv Kundal, Suresh Kumar, Laxmi Narayan, Ram Naresh and Chintamani have preferred this appeal under Section 374 of Code of Criminal Procedure, 1973 against the judgment passed by the 1st Additional Sessions Judge, Satna is sessions Trial No. 84/90 whereby, all the Appellants/accused have been convicted and sentenced as follows: The Police Station, Sabhapur filed a charge -sheet against the Appellants/accused along with another accused Gourishankar with this story that on 07.04.1990 at about 10.15 P.M., P.W.5 Kamlesh Kumar was viewing the television in his house along with family members. He found that television was not working properly, therefore, he went out side of his house to check and he found that Mubarak, a disk owner, was repairing the line. At that time, Gourishankar was also present. Kamlesh Kumar asked to repair the line as soon as the song is over, but accused Ram Naresh and Chintamani raised an objection. In the meanwhile, Kamlesh Kumar's elder brother Rajkumar reached there and some altercation took place between Chintamani, Ram Naresh and Kamlesh Kumar. Thereafter, Kamlesh Kumar and Rajkumar went back towards their house but at that time, all the accused persons came with rod, lathi and wooden pieces and Shiv Kundal caused an injuries by the means of lathi on the head of Rajkumar, who fell down. Thereafter, the accused Gourishankar inflicted an injury by the means of rod on Rajkumar's eye. Thereafter, the accused Suresh Kumar kicked him. At that time, the accused Laxmi Narayan was standing with wooden piece. During this incident, the mother and brother of Kamlesh Kumar tried to save Rajkumar and at that time, accused Gourishankar and Chintamani also caused injuries to them. Several persons reached at the place of incident and saved the injured persons. Thereafter, all the accused persons fled away from the place of incident. Rajkumar became unconscious. Kamlesh Kumar along with Rajkumar reached at Police Station, Sabhapur and lodged the report Ex. P/8. Thereafter, Investigating Officer started investigation and Rajkumar, Rakesh and P.W. 11 Shanti were sent to hospital for medical examination. Doctor S.N. Mishra RW. 12 examined these persons and handed over his reports Ex. P/14, P/15 and P/17 to police. On 08.04.1990, the injured person Rajkumar died and inquest report was prepared by the Investigating Officer in presence of the witnesses. The dead body of Rajkumar was sent to hospital for post -mortem and Doctor V.K. Gandhi P.W. 14, did post -mortem report on the dead body and then he handed over the post -mortem Ex. P/18 to police.

(2.) DURING investigation, site plan Ex. P/19 was prepared and lathi, wooden pieces and rod were recovered from the possession of the accused and seizure memos Ex. P/2 to Ex. P/6 were prepared. After completion of further investigation, the charge -sheet was filed against the Appellants and another accused. Appellant/accused Shiv Kundal was charged for the offences punishable under Sections 147, 148, 302, 302 read with Section 149 and 323 read with Section 149 of I.P.C., whereas other four Appellants/accused were charged under Section 147, 148, 302 read with Sections 149 and 323 read with Section 149 of I.P.C. The trial Court after completion of the trial, found that none of the Appellants have committed the offence punishable under Section 302 or 302 read with Section 149 of I. P.C. and they were acquitted of this charge, but instead of that, the trial Court came to this conclusion that the Appellant Shiv Kundal committed the offences punishable under Section 148 and 304 Part -II of I.P.C. and other Appellants committed the offences punishable under Section 147 and 323 read with Section 149 of I.P.C. and they were convicted and sentenced as above.

(3.) THESE five Appellants have preferred this appeal on these grounds that the judgment passed by the trial Court is totally against the evidence produced on behalf of prosecution. It could not be proved that the Appellants Chintamani, Laxmi Narayan and Ram Naresh took any participation during the incident and, therefore, their conviction under Sections 147 and 323 read with Section 149 of I.P.C. is totally against the evidence. The conviction of Appellant Suresh Kumar is also bad -in -law because, it is also against the evidence. The members of other party were the aggressors and the Appellants had a right of private defence. On the basis of the evidence of Doctors, it is very much clear that the offence under Section 304 Part -II was not proved against the Appellant Shiv Kundal and at the most, a case under Section 323 of I.P.C. is made out. The trial Court failed to discuss the prosecution evidence in proper perspective. There are material contradictions in the statements of the prosecution witnesses and considering those contradictions, the Appellants are entitled for acquittal, as the offences could not be proved beyond reasonable doubt. First of all, it would be proper to discuss the prosecution evidence with regard to role of all the Appellants and if it is found that all the Appellants were present at the time of incident and they took any kind of participation during the incident or they had any common object then only, the conclusion would be that the Appellant Shiv Kundal is liable for punishment under Section 148 of I.P.C. and other Appellants are liable for punishment under Section 147 of I.P.C. Thereafter, it can be considered whether the Appellant/accused Shiv Kundal was responsible for committing the offence of culpable homicide not amounting to murder and whether the other Appellants are responsible for the acts of others and they are also liable for conviction under Section 323 read with Section 149 of I.P.C.