REPORTABLE

              IN THE SUPREME COURT OF  INDIA           CRIMINAL APPELLATE JURISDICTION   

 CRIMINAL APPEAL NO.  946     OF 2009 (Arising out of SLP(Crl.)No. .3396......../2009)

(Arising out of Cr.Misc.Petn. NO. 5134 OF 2009

MAL SINGH ..  APPELLANT

vs.

STATE  OF M.P.

..  

RESPONDENT

J U D G M E N T

Dr. ARIJIT PASAYAT,J.

Delay condoned.

Leave granted.

Challenge in this appeal is to the judgment of the Division  

Bench of Madhya Pradesh High Court at Indore affirming the conviction

of  the  appellant  recorded  by the  learned  Additional  Sessions  Judge,  

Kukshi  ( District  Dhar)  in Sessions Trial  No.  90/2000.   One of the co-

accused person Nanki Bai was acquitted. The accused were convicted  

for  offences  punishable  under  Sec.302  read  with  Sec.34  and Sec.307  

read with Sec.34 of the Indian Penal Code, 1860 (in short `the IPC').  They  

were also convicted in terms of Sec.323 read with Sec.34 IPC.  The latter  

two convictions were recorded as the accused persons inflicted  injuries  

to  Thavlibai PW.3 and Thakur Singh PW.2.

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Prosecution version in a nutshell is as follows:

On  9/12/1999  at  7.40  p.m.,  FIR  (Ex.p/9)  was  lodged  by  

Thakur Singh at 9.35 a.m.  While the mother of the complainant Thakur  

Singh  and  his  father  Jogadia  were  sitting  on  their  `otla'  outside  the  

house, the accused persons approached towards the deceased and the  

witnesses stating that their mother Thavlibai was engaged in witchcraft,  

started  beating  the  deceased  Jogadia  and  his  wife  Thavlibai.   When  

witnesses  tried  to  save  them,  they  were  also  extended  the  same  

treatment,  with  the  result  Thavlibai,  after  sustaining  injuries  over her  

head and mouth, became unconscious and Jogadia succumbed to the  

injuries.   After so assaulting the deceased  and his  wife,  the accused  

persons fled away.

As the complainant Thakur Singh was injured, he was sent  

for medical examination under Requisition Ex.P/1, and Thavlibai under  

Ex.p/2. After examination of their injuries, Dr. S.L. Mujalda (PW.1) issued  

injury reports Exs.P/3 and P/4.   The investigating officer proceeded to  

the spot and took samples of blood stained and plain earth as also the  

blood stains lying on the ground. Inquest was held and inquest memo  

Ex.P/16  was  prepared.   The  body was  forwarded  to  the  hospital  for

autopsy and Dr. S.L. Mujalda (PW.1), after autopsy, issued post-mortem  

report  Ex.P/6.   According to the testimony of the said Doctor and his  

report Ex.P/6, the following external injuries were found on the body of  

the deceased.

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1Contusion wound 6 cm. x 3 cm at root of nose. Fracture  

of Nasal bone;

2Laceration wound 4 cm x 3 cm on front of head at left  

side of the mid line;

3Laceration wound 8 cm x 3 cm at the top of the head  

(skull) fracture of skull bone at the parietal area, fracture  

simple;

4Laceration wound 4 cm x 5 cm at right side of the head  

at front area;

5Laceration wound 6 cm x 4 cm at occipital area of head.

The Dr. S.L.Mujalda (PW 1) opined that death occurred on  

account of haemorrhagic shock due to head injury.

The accused  were  arrested  and the  seized  articles  were  

sent  for  examination  to  the  Forensic  Science  Laboratory.   After  

completion  of  the investigation charge-sheet  was  filed.   The accused  

persons pleaded innocence. The trial Court hold them guilty.   

Three appellants before the High Court i.e. Mal Singh, Lal  

Singh and Juansingh were convicted by the trial Court while Nanki Bai  

was acquitted. The trial Court referred to the evidences of PWs. 2,3,4,5  

and 6 who claimed to be eye witnesses.  The trial Court placed reliance  

on these witnesses and recorded conviction.  Before the High Court the  

main question raised related to the applicability of Sec.34 IPC.  The trial  

Court found

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that Sec.34 had clear application.  The impugned judgment of the trial  

Court was in question before the High Court.  In  case of the present  

appellant the conviction under Section 302 read with Sec.34 was altered  

and the appellant  was  convicted in terms of  Sec.302.   The other two  

appellants Lal Singh and Juansingh were acquitted of the charge under  

Secs.  323/34 IPC.  The accused Juansingh was  convicted in terms of  

Sec.325 in place of Sec.307 read with  Sec.34 IPC. This alteration was  

done primarily on  analysis of the evidence produced qua the accused  

and co-accused Lal Singh and Juansingh.   

In support of the appeal learned counsel for the appellant  

submitted that the role was attributed to three accused persons and not

to  the  appellant  alone.   When  the  co-accused  were  acquitted  the  

appellant  should not have been convicted.   Alternatively it  is  pleaded  

that the case is not covered under Sec.302 IPC.  

The evidence of one of the eye witnesses  i.e.  PW.3 who  

also suffered injuries was to effect that the appellant hit the deceased  

with  stones  which  hit  him  on  the  skull.   It  was  also  pointed  out  in  

evidence that Mal Singh also threw 10-12 stones in all at the deceased  

and  Juansingh  also  hit  the  deceased  with  stones.  The  report  of  the  

Doctor (PW.2) shows that there was fracture of skull bone. There was  

also  fracture of the nasal bone.  There was lacerated wound on the right  

side of the head at front area and  lacerated wound at occipital area of  

the  head.   

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These injuries clearly show that the murder was clearly intended. That  

being  so,  the  conclusion  of  the  High  Court  does  not  warrant  

interference.  Hence, the appeal is dismissed.   

We record our appreciation to the assistance rendered by  

Ms. Indira Sawhney who appeared as amicus curiae.

                          ................ .J.               (Dr. ARIJIT PASAYAT)

             ...................J.

                                       (ASOK KUMAR GANGULY) New Delhi, April 28, 2009.