MUKUT BIHARI Vs. STATE OF M P

JUDGEMENT

(1.) An incident took place on 28/9/1983 at about 10 A.M. on the Merh of a field when Sarvelal received head injury as a result of a stone thrown at him. He was then cutting some Beshram bush. The field belong to the appellant and it is the case of the prosecution that when the appellant objected to Sarvelals cutting that bush and Sarvelal did not remove himself from that place, the appellant threw a stone at him causing aforesaid injury. Sarvelal returned to his village and narrated this incident to his father Katalchand (P.W. 1) and also to other villagers including Sunderlal (P.W. 2), Gaya Prasad (P.W. 4), Kanhaiyalal (P.W. 6) and Katalchand (P.W. 11). All these witnesses saw the injury on Sarvelals head. It is also the case of the prosecution that the appellant confessed the fact of his causing injury by pelting a stone to Sunderlal (P.W. 2) and Gaya Prasad (P.W. 4). Sarvelal was then taken to Chourai for treatment. Since the injury appeared to be rather serious. Dr. A.K. Jam (P.W. 10) referred Sarvelal to the Civil Hospital, Chhindwara where he was examined by Dr. D.C. Jam (P.W. 5) Sarvelal was admitted in the Hospital and the treatment given to hill) right from the time of admission is narrated in Bed-head Ticket (Ex. P19). The intimation was sent to the Police vide Ex. P110. The prosecution also suggested that the appellant and his son Ramu assured villagers including Sarvelals father Katal Chand that no report of the incident be made and that he would bear all expenses of treatment and shall also duly compensate Sarvelal for the injury case. It was for that reason that no report was made until 6-10-1983, when Katalchand (P.W. 1) lodged the report Ex. P/i, consequent to which an offence under Section 337 of the I.P.C. was registered. Sarvelal breathed his last on 8.10.1983 in the hospital only then an offence under Section 302 of the I.P.C. was registered and enquired into. Challan was then filed and the appellant was tried for causing murder of Sarvelal.The trial Court believed the evidence of prosecution and also relied upon the oral confession made to Suderlal and Gaya Prasad. On that the appellant has been found guilty and has been sentenced to imprisonment for life. He appeals.

(2.) Shri Surendra Singh learned counsel for the appellant, first urged that the evidence on record suggests that the injury caused to Sarvelal was the result of his fall from a tree. Learned counsel submitted that the reports made by P.W. 1 Katalchand and P.W. 3 Bhaiyalal on the next day of the incident have been suppressed by the prosecution. An adverse interference must, therefore, be drawn from such a suppression of these reports. It is true that the evidence of Dr. Jam (P. W.5) and Dr. A. K. Jam (P. W. 10) read alongwith Ex. P19 and P110 gives on indication that the injury sustained by the deceased Sarvelal was on account of some fall. Some such indication also appears in the testimony of Katalchand and Bhaiyalal (P.W. 1) and (P.W. 3) respectively. Reading between the lines, however, it cannot escape ones notice that it was Ramu, the son of the appellant, who has been behind the scene in creating that evidence. There appears to be no reason why he would go round from the village to Chourai and then from Chourai to Chhindwara, taking such deep interest in the matter. This is so because the evidence discloses that the appellant and his son Ramu and the party of the deceased belong to two different rival groups in the village. Such interest on the part of Ramu speaks for itself. Therefore, this appears probably that because Ramu assured to compensate Katalchand for injury sustained by Sarvelal, the story of fan from tree was concocted. The real facts appear only for the first time in Ex. P/i, the report lodged by Katalchand (P.W. 1). Our interference is re-enforced by the circumstance that there is no evidence as to the type of floor on which Sarvelal is said to have fallen from the tree. Dr U.C. Jam (P. W.5) was cross- examined on this line. He stated in para 5 of his deposition that if a man falls from a tree on a rocky surface, then the injury on the head would be caused if the body does not happen to roll. Now there is no evidence in the present case that Sarvelal fall on any rocky surface, or that he did not roll after the fall. Instead, the evidence discloses that the incident took place on the Merh of a field where it is unusual to find rocks. The surface of the field is seldom rocky. We are, therefore, of the opinion that the witnesses truly stated before the Court that Sarvelal told them that the appellant pelted stone at him resulting in head injury. We, therefore, reject the contention that the injury sustained by Sarvelal resulted from a fall from a tree.

(3.) There is, however, substance in the contention raised on behalf of the appellant that he cannot be held guilty of causing murder of Sarvelal. He cannot even be held guilty of causing grievous hurt, although, the injury caused resulted in fracture. Section 323 of the I.P.C. reads as under: 323. Whoever, except in the case provided for by Section 334, voluntarily causes hurt shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.