KOTHARI KOL Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) All the appellants have been convicted with the aid of Section 34 of the I.P.C. for committing murder of one Virendrasingh on 25-12-82. According to the prosecution, when the deceased was sitting in the house of Purshottam (P.W. 3) the accused one after the other came on the scene and questioned about the appellant Kothari's missing daughter accusing the deceased of having kidnapped her. On the deceased denying the accusation a quarrel ensued. As one of them viz. Panch a held an axe in hand and few others had lathis. The deceased apprehending danger ran away to save his life. He however dashed against a barrier and fell down. The appellant rushed at him. The prosecution then alleges that at this stage the appellant Shital snatched the axe from the appellant Pancha and with it inflicted injuries on the deceased Virendra Singh. Further allegation is that Mithailal caught the deceased by waist while Pancha accosted deceased fell dead on the spot. The further allegation is that he was dragged by Kothari and Shital and left on the street. The incident wag witnessed by Chhote Narayan P.W. 2, Purshottam P.W. 3, and Jagdish P.W. 6 and it is alleged that the accused confessed their guilt before Sumer P.W. 7 Deep chand, D.W.8 and Sitaram P.W. 9. the first information report (Ex. p.1) was lodged same day after about live ho u/s at the incident investigation was taken up in the usual manner accuseds axe was seized and the body of deceased Virendra Singh was examined by Dr, R K Choudhary P,W 11 who performed the post-mortem examination on that body Post mortem report is Ex P-6. This report shows as many as three incised wounds on the scalp with fractures underneath. These injuries according to Dr. R.K. Chaudhary P.W. 11 were ante-mortem could be caused by axe and were sufficient in the ordinary course of nature to case death. On the allegations all the appellants were tried at the charge of having common intention and in furtherance of that intention for commission death of Virendra Singh. The trial Court believed the prosecution story in its entirety and as thus convicted the appellants aforesaid. They have been sentenced to imprisonment for life.

(2.) The learned Counsel appearing for the appellants could not Jay any serious challenge to the conclusions reached by the AddI. Sessions Judge who tried the appellants that Virendra died a homicidal death on 25-12-82 when he sustained injuries as one evidence by the post mortem report Ex. P 6 proved by Or. R.K. Choudhary (P.W. 11) in Court. The record of the trial Court shows that the Doctors testimony has remained unquestioned. It shows that the deceased sustained three injuries resulting in fracture and ultimate death. These injuries could be caused by an axe and one indicated above one opined to be sufficient to cause death. They were ante-mortem. We therefore unhesitatingly uphold the trial Courts findings that Virendra Singh died a homicidal death as a result of & sustaining injuries which could be caused by axe and that the injured were sufficient in the ordinary course of nature to cause death, who caused there fatal injuries is the question and a further question is whether they were the with an intention to cause death. Yet another question is whether all the appellants can be said to be sharing of common intention to cause death. We have in this regard the evidence of Chhote alias Narayan P.W. 2. and Purshottam for consideration. The testimony on Jagdish (P.W. 6) has been disbelieved by the trial court itself and in our opinion for good reasons. We however do not agree with the learned Counsel that the evidence of Chhote alias Narayan (P.W. 2) and Purshottam PW. 3 should also be discarded. The learned Counsel took us through their entire depositions. These two eye - witnesses clearly stated all the details of the incident from the beginning to end. They deposed that on being questioned Virendra Singh denied the he had elarsed with appellant Kotharis daughter. This enranged all the appellants who came on the spot one after another Shital had a lathi and Pancha had an axe. Then became aggressive and raised their arms to assault the deceased. Virendra Singh Tried to escape but unfortunately fell down. He thus fen on easy prey to the appellant an the appellants rushed at him. Pancha, with an axe in his hand Shital snatched from Pancha Mithailal, caught the deceased by waist and Shital dealt with repeated blows on the deceased. The deceased sustained as many as 12 injuries as appears from the post mortem report Ex. P-6. Virendra Singh died. The learned Counsel pointed out some contradictions in the testimony of these witnesses first between themselves and secondly between the depositions in court and their statements given to the police during investigation we are however, of opinion that these contradictions are too minor to return their testimony as doubtful or unreliable. They are only in very minor points and as well be attributed to the lapse of time after all nothing could be brought out to show as to why these two witnesses would unnecessarily and falsely implicate the appellants. As we are agreeing with the assessment pf their evidence by the lower Court we need not discus their testimony in detail again. Suffice to say that they are truthful witnesses and have clearly deposed the presence of an the appellants on the spot. Their participation in the crime and assault by Shital on the deceased by axe. Thus even if we ignore the evidence of extra judicial confession allegedly made by the appellants to Sumra P.W. 7 Deepchand P.W 8 and Sita am P.W. 9. We are of the opinion that the testimony of these two eye - witnesses coupled with the evidence of Dr. R.K Choudhary (P W. 11) is sufficient to up held that the deceased Virendnsinah died as a comequence of the axe blows dealt with on his person by Shital.

(3.) The nature of the injuries as we find in post mortem report (Ex. P.6) shows that the intention was only to cause death. Pancha had an axe in his hand. Shital watched it at a point when the deceased I ad fallen on the ground. He was disabled at the stage that axe blows were dealt with on his person not one but three incised wounds are found on the scalp with fracture benealh them apart from this nine other injuries were also found on the person of the deceased under these circumstances, it cannot be held as was suggested by the learned Counsel for the appellants that intention was not to commit murder. It was also agued that on the sport ensued a heated discussion and without any pre-mediation and suddenly the dispute arose and injuries, was caused. It was suggested that the offence would be only culpable homicide not amounting to murder punishable under Section 304 of the I.P.C. This contention is also devoid of substance. The evidence is that the deceased tried to escape He ran away. Unfortunately he fell down striking against the barrior. He was thus completely disable the accused rushed at him and the injuries were inflicted Virendrasingh died on the spot. Accuse a have reached the spot duly armed with axe and lathis. It will therefore be difficult to accept this contention, which reject.