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CASE NO.: Appeal (crl.) 532  of  2000

PETITIONER: ADDHA

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT:       28/09/2001

BENCH: U.C. Banerjee & K.G. Balakrishnan

JUDGMENT:

K.G. BALAKRISHNAN, J.

       Appellant   Addha, son of Rooplal, was tried by the First Additional Court of Sessions, Mandla [Madhya Pradesh], along with four others, or the  offence punishable under Section 302 read with Section 149 IPC.   The Sessions Court held that there was no unlawful assembly as alleged by the prosecution and   the appellant was found guilty of the offence punishable under Section 302 for having caused the death of one Sher Singh.   Two other accused, namely, Rooplal  and  Buddhulal   were  found   guilty   of  the offence punishable under Section 324 IPC.    The conviction and sentence of the accused   were confirmed   by   the  High Court.

       The    incident    in question took place on   19.7.1986 at about 9.00 PM. PW-1 Jugal Kishore, along  with   PW-3 Mishridas, was returning  from  the nearby   flourmill and they saw accused  Buddhulal in a wordy altercation with PW-4, Pancham.    Jugal Kishore   intervened   and   tried   to  dissuade  them from  quarreling.    At that time,    Buddhulals father  Rooplal came there and took his son  to his house.      But   on   reaching       their house,   Buddhulal and  Rooplal started hurling abusive words at PW-1, Jugal Kishore.   On hearing this, deceased Sher Singh,   PW-2 Gulab   and some  others persons  came to the place of occurrence  and there ensued a quarrel.     It is alleged that  while Buddhulal was armed with an axe, Rooplal was armed with a Bichua and Addha was having a Lathi.   It  is the prosecutions   case that Rooplal   inflicted  an injury on PW-1 Jugal Kishore and Buddhulal  dealt a blow on the arm of Gulab.  It is also  the prosecutions  case  that   Addha dealt 2-3 blows on the head and chest of the deceased  Sher Singh.         Deceased Sher Singh fell on the ground.      He   was   taken   to   the nearby hospital where he was declared dead.

       On the next day by about 9.20 AM, PW-1 Jugal Kishore gave the F.I. statement before the  police and PW-6, Sub-Inspector of Nainpur Police Station, took over the investigation.   He held inquest on the  body of the  deceased   and the   dead body was then sent for post mortem examination.   PW-8 conducted the post-mortem   and   it    was revealed that   7th and 8th ribs of left side of the chest of the deceased were fractured.   PW-8 deposed that the injuries on the head and the  ribs were sufficient in the ordinary course of nature to cause death of the victim.

       We heard  the  learned counsel on both sides.   The counsel for the appellant  contended that the prosecution case is not true and correct and that PW-1 Jugal Kishore,    deceased Sher Singh,   PW-2 Gulab and others came

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and attacked the accused.   It   was also contended that the  accused Rooplal and others had sustained injuries in the course of the incident.   It was argued that the prosecution failed to prove that appellant    Addha caused the vital injuries to the deceased Sher Singh.    We find some force in the above contention.

       According to PW-1 Jugal Kishore,  when  he was coming along with PW-3 Mishridas,  he   saw   Buddhulal   and PW-4 Pancham quarrelling.   He intervened in the quarrel and tried to send them away.      By the time the first accused Rooplal  also reached  there  and took   Buddhulal  home.     PW-1 also alleges that he was severely abused by the first accused Rooplal.   The incident is alleged to have taken place near the house of Rooplal.      Even according to the F.I. statement given by PW-1 before the police,    after the first incident of quarrel between Buddhulal and  Pancham,    PW-1 Jugal Kishore and others proceeded to the house of Rooplal.   When they reached the house of Rooplal, the accused persons started attacking  PW-1 Jugal  Kishore  and others.   PW-2 Gulab has  deposed that his house is located about half a mile from the place of incident.    It is certain that he along with PW-1 and others must have  come to the house of the accused with an intention to pick up a quarrel with them and there   ensued   the   attack  and   the   counter-attack   and   in   that   incident, PW-1,   PW-2 and   the deceased Sher Singh sustained injuries.   It is also pertinent to note that in the F.I. statement,   PW-1 has not stated that the appellant caused  any injuries to the deceased Sher Singh on his head.   In the F.I. statement, it is only stated that  appellant Addha had given a Lathi blow on the ribs  of Sher Singh and as a result thereof Sher Singh sat down  and later died.  The other accused were also  armed with Lathis.   There is also evidence to the effect that there was complete darkness and it was not possible to  see who had caused the injuries.   PW-2 admitted in his cross-examination that when he proceeded from his house to the place of incident, it was dark.   PW-4 also admitted  in the cross-examination that there was complete darkness and he could identify only some of them.

       In view of the failure of PW-1 to mention the details of  attack by the appellant  as against deceased Sher Singh and in view of the  fact  that the entire incident happened pursuant to a quarrel between two groups of people and that the appellant had no deliberate intention to cause death of  Sher Singh, we do not think that an offence under Section 302 IPC had been made out against the appellant.    The incident was the result of a sudden quarrel between the two groups and in that melee  the appellant must have  used a Lathi which caused injury to  Sher Singh which ultimately resulted   in his death.  In that background it is difficult to hold  that   the appellant committed  the offence of murder.   The offence  would only come under Section 304 Part II of the  Indian Penal Code. Therefore,  we  acquit the appellant of the offence under Section 302 IPC and find him guilty of offence punishable under Section 304 Part-II of IPC.

       We are told that the appellant has been undergoing imprisonment ever since the date of Sessions Courts judgment,   which was pronounced on 28.9.1988.   Therefore, we hold that the sentence already undergone by the appellant is sufficient to meet the ends of justice.   In the circumstances of  the case,   appellant   Addha, son of Rooplal is directed to be released forthwith,  if not required in any other case.      The appeal would stand allowed accordingly.

                                                       J                                                         (U.C. Banerjee)

                                                       J                                                         ( K.G. Balakrishnan )

September 28, 2001.

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