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CASE NO.: Appeal (crl.)  1268 of 2006

PETITIONER: Lal & Anr

RESPONDENT: State of M.P

DATE OF JUDGMENT: 03/10/2007

BENCH: S.B. SINHA & H.S. BEDI

JUDGMENT: JUDGMENT

       S.B.SINHA.J         (1) Appellants- Motilal and Santosh Kumar are before us aggrieved by and  dissatisfied with the judgment of conviction and sentence passed by a Division Bench  of the Madhya Pradesh High Court dated 13.5.2004.         (2) The parties were neighbours. Their houses were divided only by a wall.  They bore animosity with each other. The sequence of events started with defaecation  by a child- Nitin in the house of Motilal.         (3) On 4.7.1999 at about 9.30 a.m. when Nitin son of deceased Munnilal was  playing  near a tap situated close to his house, Pushpendra son of Motilal put some  mud on his clothes. Nitin went to his house and informed his father Munnilal. Munnilal  came to the house of Motilal and complained in regard to the conduct of Pushpendra.  Motilal, Santosh and Hariram  allegedly told him that their children would act in that  fashion only. Narbadiya Bai- P.W.-3 reached the spot and told them that they always  picked up quarrels. Appellants herein allegedly started inflicting  axe blows on  Munnilal-since deceased. Narbadiya Bai tried to save him, but allegedly one Jamuna  Bai inflicted a blow on her by means of an iron pipe. Appellants Kalli Bai and Guddi  Bai also hurled stick blows on Narbadiya Bai. Meanwhile Baldev said to have reached  at that point of time. Appellants inflicted axe blows on Baldev and Hariram gave a  blow of Baka on Baldev. Appellants Kali and Guddi Bai are said to have given stick  blows on Baldev. Appellant-Lachhu snatched the axe from Santosh Kumar and dealt a  blow on the head of deceased Munnilal.         (4) Prosecution case further is that the appellants together with Lachhu,  Hariram, Kalli Bai and Guddi caught hold of Munnibai and dragged  her to the door  of their house. Whereas Motilal brought a cane of kerosene and sprinkled kerosene on  Munnibai; Santosh put her on fire. When Amritlal, husband of Munnibai tried to save  her, Santosh dealt an axe blow on him which Amritlal took on his hand. Amritlal,  thereafter, ran away from the place of incident and informed the police. Munnibai in  the meantime rushed towards a nearby well and jumped there into.  Sita-daughter of  Amritlal reached the place of occurrence. She was pushed into a drain by Santosh.  Similar treatments were meted out to Devshree and other children.         (5) First information report was lodged at about 11 a.m. on the same day.  All the accused persons were arrested at the spot. In fact, the arrival of police saved  further deterioration of the situation.         (6) Munnilal and Baldev died on the spot. Munnibai was rescued from the  well. Her dying declaration was recorded. She succumbed to her injuries later on.         (7) Charges under Section 302/149 I.P.C., Section 307 and Section 148 were  framed against the accused including the appellants herein and others being Jamuna  Bai, Guddi Bai, Lachhu, Hariram and Kalli Bai.         (8) The learned trial Judge imposed death sentence upon Santosh and  Motilal on the charge of murder of Munnilal and  Baldev as also Munnibai. They were  also sentenced under Section 307 of the I.P.C. for attempt to murder  Narbadiya Bai  and Amritlal. Other accused were also charged and convicted under Section 324 I.P.C.  for causing hurt to the children.         (9) The High Court, however, by reason of the impugned judgment opined  that a free fight between the parties had taken place. It  proceeded to examine the case  on the basis of the actual role played by each of the accused. Upon  analysing  the  evidence, it was opined that only appellants  are guilty of commission of offences

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mentioned hereinbefore.  Apart from convicting Jamuna Bai for attempt to murder  Narbadiya Bai and Hariram were convicted for causing hurt to Devshree under Section  324 I.P.C.. Other accused were acquitted.         (10) As indicated hereinbefore, whereas the judgment of conviction under  Section 302 IPC and Section 302/149 was cofirmed against Santosh Kumar and Motilal  but their sentence was reduced from that of death to rigorous imprisonment for life.  Santosh Kumar was also convicted for commission of an offence punishable under  Section 307 I.P.C. for attempt to commit murder of Amritlal and sentenced to undergo  rigorous imprisonment for seven years.         (11) Learned counsel appearing on behalf of the appellants would submit  that keeping in view the fact that there had been a free fight, the appellants could not  be said to have any intention to kill the aforementioned persons. Learned counsel in  this behalf drew our attention to the testimony of Dr. D.K. Jain-D.W.2 as also Dr.  Vijay Parmar- D.W.1, who had proved the injuries suffered by the accused persons.         (12) A feeble attempt was also made by the learned counsel to contend that  as the prosecution have not explained the injuries on the part of the accused persons,  the entire prosecution case must fail.         (13) Learned counsel appearing on behalf of the State, on the other hand,  submitted that the sequence of events as noticed by the learned Sessions Judge itself as  also by the High Court clearly establish the cruel manner in which an attempt had been  made not only to kill three persons but to attempt to murder two others and cause  injuries to the children.         (14) Learned counsel would submit that the High Court had committed a  serious error in acquitting the other accused persons of the serious charges made  against them. It was submitted that had the police not intervened, the number of  deceased might have increased. It was pointed out that Munnibai was not only dragged  by the accused to their own house, a cane of kerosene was brought from inside the  house and sprinkled on her body and fire was lit. She only out of desperation jumped  into the well and could be rescued only after the police arrived.         (15) Prosecution in support of its case, examined a large number of  witnesses. Amongst them, Narbadiya Bai(P.W.-3) was widow of deceased Baldev,  mother of deceased Munnilal and mother-in-law of deceased Munnibai, gave her  version in regard to the incident in question. She fully supported the prosecution  case.She gave details as to how Baldev and Munnilal were done to death and Munnibai  was set on fire. She also established that when Amritlal tried to save Munnibai, was hit  by an axe blow by Santosh. When Sita and Devshree reached there, Santosh pushed  Sita into a drain. Devshree also received the same treatment from him. According to  her, Hari Ram also dealt a blow of Baka on the thigh of Devshree.         (16) Amritlal is another prosecution witness. He was offering his prayers in  his house at about 10.30 a.m. on the relevant day. When he heard some cries, he came  out and saw the occurrence.     Sarita (P.W.-8) was also an eye witness.         (17) The High Court, however, despite such evidences, proceeded on the  basis that injuries on the persons of the accused had not been explained. As Narmadiya  Bai did not name Jamuna Bai,Guddi Bai and Hari Ram as assaulting anybody, they  were given the benefit of doubt.         (18) On such finding, the High Court opined that only Moti Lal and  Santosh were responsible for the death of Munni Lal. Similarly, as regards the death of  Baldev, Santosh and Moti Lal were found to be guilty.         (19) In regard to setting Munniabi on fire,again the High Court proceeded  on the basis that Santosh had dragged  Munnibai and Moti Lal poured kerosene on her. Participation of other accused in his  said act was not accepted. The High Court was of the opinion that the prosecution  could not establish individual act of any other appellant, so far as the attempt to  commit murder of Narbadiya is concerned. However, in regard to Amritlal, Santosh  was found responsible for attempt to commit his murder.         (20) It is therefore, difficult to accept the contention of learned counsel for  the appellant that they are not guilty of commission of the said offence. The question as  to whether they had any intention to kill or not must not engage our serious attention as  in this case existence of any common intention has been ruled out. The High Court  proceeded to record its reasons only on the basis of individual acts of the appellants.  No case has been made out that the injuries were inflicted by the appellants in their  self-defence. In absence of any such case having been made out, injuries suffered by  some of them pales into its significance. Three persons lost their lives. The manner in  which the offences have been committed was gruesome. They not only killed Baldev  and Munnilal but also dragged Munnibai to her house, poured kerosene and set her on

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fire. Whosoever had come to save was was not spared. Narbadiya Bai and Amritlal had  also been assaulted.Even the children were not spared.           (21) In this view of the matter,  we are of the opinion that it is not a case  where the appellants can be absolved of the charges of murder of Munnilal, Baldev and  Munnibai.          (22) The appeal is dismissed. However, having regard to the fact that the  State has not preferred any appeal against the judgment of acquittal passed by the  High Court against the said accused persons, it is not possible for us to hold that it was  not a case of free fight or the other accused also had any hand therein.