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CASE NO.: Appeal (crl.)  229 of 1997

PETITIONER: Bagdi Ram                                                

RESPONDENT: State of Madhya Pradesh                                  

DATE OF JUDGMENT: 03/12/2003

BENCH: N. SANTOSH HEGDE & B.P. SINGH  

JUDGMENT: JUDGMENT

B.P. SINGH, J.  

       Bagdi Ram, who is the sole appellant in this appeal by special  leave, has impugned the judgment and order of the High Court of  Madhya Pradesh, Jabalpur in Criminal Appeal No. 94 of 1991 dated  30th September, 1996 finding him guilty of the offence under section  304 Part-I  IPC and sentencing him to undergo rigorous imprisonment  for eights years and a fine of Rs.5,000/-, in default to undergo further  rigorous imprisonment for 20 months.     

       Appellant Bagdi Ram, alongwith five members of his family,  was put up for trial before the Second Additional Sessions Judge,  Mandsaur in Sessions Trial No. 212 of 1990 in which they were  variously charged of the offences under sections 147, 148, 323/149,  and 302/149 IPC.   The trial court by its judgment and order dated 20th  December, 1990 acquitted all of them holding that they had acted in  exercise of their right of private defence and that the prosecution had  failed to explain the injuries suffered by three members of the defence  party.  State of Madhya Pradesh preferred an appeal against the  acquittal of all the six accused persons and by the impugned judgment  and order, the High Court while setting aside the order of acquittal  passed in favour of appellant Bagdi Ram and his son Ramesh,  acquitted the other accused persons.  The High Court, as noticed  earlier, found the appellant guilty of the offence under Section 304  Part I  IPC and sentenced him as earlier noticed.  Ramesh was found  guilty of the offence under section 323 IPC and was sentenced to the  period of imprisonment already undergone and a fine of Rs.500/-, in  default to undergo rigorous imprisonment for two months.   

       The incident giving rise to this appeal occurred on May 12,  1990 in village Digaonmali in which Mangilal and three members of  his family suffered injuries at the hands of the accused.  One of them,  namely \026 Jagdish later succumbed to his injuries.          The case of the prosecution is that Bagdi Ram and Mangilal,  PW.4 resided as neighbours in the same locality.  On the date of  incident the appellant herein was getting a wall constructed which was  objected to by Mangilal, PW.4 on the ground that the construction of  the wall would obstruct passage to his house. An altercation followed  in which the appellant and his sons are alleged to have abused  Mangilal to which Mangilal objected.  The appellant and his three  sons, namely \026 Ramesh, Dinesh and Dilip started assaulting Mangilal,  PW.4 causing injuries on his back and head.  Ramesh, PW.1, son of  Mangilal intervened but he was also assaulted.  The incident attracted  Jagdish, (deceased) and Gopal, PW.3 another son of Mangilal to the  place of occurrence and when they attempted to intervene they were  also assaulted.  The case of the prosecution is that appellant Bagdi

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Ram caused an injury on the head of the deceased by assaulting him  with a ’gainti’ (pick-axe) as a result of which Jagdish, (deceased) fell  down.   Other members of the family of appellant Bagdi Ram also  came to the spot and started pelting brick-bats on the members of the  prosecution party.  This attracted many residents of the locality to the  place of occurrence, Bhanwarlal, PW.6, being one of them.  Apart  from deceased Jagdish and Mangilal, PW.4, Sampatibai, PW.2 wife of  Mangi Lal and Gopal, PW.3 were also injured.  Bhanwarlal, PW.6  brought them to the District Hospital at Mandsaur.  Jagdish (deceased)  was unconscious.  It appears that Ramesh, PW.1, who was assaulted  alongwith his father when the incident began, had rushed to the police  station at Afzalpur and lodged a report Ext. P/1 at 10.20 a.m. and a  case was registered by Head Constable Gopala Singh, PW.8 under  Sections 341, 294 and 323 IPC.   

       When the injured persons were admitted in the hospital, Dr.  A.V. Gwaliorkar, PW.10 sent information to the police station and  pursuant thereto Head Constable Ramnagina Singh, PW.9 came to the  hospital.  He arranged for the medical examination of the injured  witnesses as well as Jagdish who later died.  Since the condition of  Jagdish was precarious, he was shifted to H.Y. Hospital, Indore but he  succumbed to his injuries on May 16, 1990.   

       The post-mortem examination of the dead body of deceased  Jagdish revealed the following ante mortem injuries suffered by him :-

       "1.     Contusion 3 cm. square in shape on the right leg.

2.      Abrasion 2 cm. x 1 cm. below left eye.

3.      Abrasion 2.5 cm. x 1 cm on back side of left  elbow.

4.      Punctured lacerated wound present on the glabella,  2 cm in diameter, scalp deep.  Underneath bone  was fractured into pieces.

5.      Rail pattern bruise present on the left eligible  lateral aspect 6 cm x 2 cm size.  Intervening  (eligible) is 1 cm. obliquely vertical.

6.      Rail pattern bruise present on left scapular region,  middle part, obliquely transverse 6 cm x 1.5 cm  margins slightly diffused.  Intervening healthy area  is 0.5 cm.   

7.      Surgical and stitched wound present on scalp right  side arising from ptarygia going upwards for 6  cms. then curve laterally and goes posteriorly for  14 cms. arise and (eligible) downwards.  It is 22  cms. long and 1.5 cm. wide.  It is having intact  stitches.  It is having laceration of margins of  wound at middle part from anterior to posterior  end.  There is abrasion on border laterally 0.6 cm."   

       The injury caused on the head of Jagdish was such that it  fractured the right temporal parietal region and there was a  craniotomy hole in 5 cm. diameter area.  There was a radiating  fracture extending upto right ptergia region 6 cm. in length.  Extra  dural haematoma present at an area of  8 cm. x 6.5 cm.   The fracture  extended to the base of the skull in right anterior cranial fossa from  external fracture.  There is no dispute that the injury allegedly caused  by the appellant on the head of the deceased resulted in his death.

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       The prosecution examined several eye witnesses to prove its  case which included Mangilal, PW.4, his wife Sampatbai, PW.2 and  two sons \026 Ramesh, PW.1 and Gopal, PW.3 and Bhanwarlal, PW.6, a  co-villager.   

The defence on the other hand contended that the prosecution  party was the aggressor and that they had assaulted three members of  the defency party, namely -  accused Sumitra, Bagdi Ram and Dinesh.   It was contended that the members of the prosecution party were  aggressors and they had only retaliated in exercise of the right of  private defence of person.   

The trial court was impressed by the plea urged before it,  namely \026 that the members of the prosecution party were the  aggressors.  It held in favour of the accused holding that since the  appellant was constructing a wall on his own land, the members of the  prosecution party had no rhyme or reason to object.  Since the injuries  sustained by three members of the defence party was not explained by  the prosecution, it held that the prosecution party was the aggressor  and the accused acted in exercise of right of private defence of person.                 

       The High Court on a careful appreciation of the evidence on  record has found the findings recorded by the trial court unsustainable  having regard to the evidence on record.  The evidence on record  clearly establishes that Mangilal, when he initially objected to the  erection of the wall in front of his entrance, was not an aggressor.  He  merely objected to the construction of a wall blocking his passage.   All members of the prosecution party including those who came  subsequently were unarmed.  The mere fact that they objected to the  erection of the wall in front of their entrance did not pose any threat to  the members of the defence party.  There was really no reason for the  members of the defence party to adopt an aggressive posture by  assaulting Mangiram and his son Ramesh in the first instance, and  thereafter assaulting Jagdish, deceased and others.  It is noticeable that  Mangiram and his son Ramesh were initially assaulted, and when they  raised an alarm Jagdish, deceased, came running to the rescue of his  father and brother.  Admittedly he was unarmed.  His rushing to the  place of occurrence was not an act of aggression and it was only  natural for him to come to the rescue of his father and brother who  were being assaulted by the appellant and his family members.  In  such a situation there was really no justification for the appellant to  assault Jagdish with a ’gainti’ (pick-axe) and that too on the head of  Jagdish causing such a serious injury.  He must have assaulted  Jagdish, deceased, with all his might having regard to the fact that the  skull bone was fractuared and extensive damage had been caused to  the skull, as noticed by the doctor who performed the post-mortem  examination.     

       Having appreciated the entire evidence on record we are  satisfied that the High Court was right in holding that the appellant  and other members of his family had no apprehension of danger to  their person because members of the prosecution party were all  unarmed.  It has come in evidence, and the High Court has also  recorded a finding that at some stage brick-bats were pelted from both  sides by members of the families of Bagdi Ram and Maniglal which  included some ladies.  The injuries on the person of three of the  accused are thus explained.  Since both the parties indulged in brick- batting the High Court has given the benefit thereof to the defence and  has acquitted four of the accused persons against whom there was no  direct evidence of having participated in the assault.  The High Court  has analysed the evidence on record with a view to find out which of  the members of the defence party actually assaulted the members of  the prosecution party.  So far as the appellant is concerned the  evidence is clear and categoric that it was he who assaulted the  deceased on his head with ’gainti’ (pick-axe).  The High Court,

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however, held, and in our view, rightly, that in the facts and  circumstances of the case the appellant did not intend to cause the  death of the deceased.  There was an altercation followed by assault  on PWs.1 and 4 and brick-batting from both sides.  When tempers ran  high, in the heat of passion, upon sudden quarrel, the appellant  assaulted the deceased though unarmed, but without pre-meditation.   He caused only one injury to the deceased by picking up the ’gainti’  (pick-axe) lying there, and the fact that he did not repeat the blow is  indicative of the fact that he did not intend to cause the death of the  deceased.  The High Court gave to the appellant the benefit of  Exception 4 to Section 300 and found the appellant guilty of the  offence under section 304 Part I IPC.  We find no error with the  finding recorded by the High Court.  But in the facts and  circumstances of the case we are of the view that the sentence of eight  years is on the higher side.  The ends of justice would be met if the  sentence is reduced to three years rigorous imprisonment.   

Accordingly we allow the appeal partly modifying the sentence  awarded to the appellant to three years rigorous imprisonment under  Section 304 Part I IPC but maintain the sentence of fine of Rs.5,000/-  and in default of payment of fine to undergo further rigorous  imprisonment for six months.  This Court by its order dated 25th April,  1997 had granted bail to the appellant.  The bail bonds furnished by  the appellant are cancelled and he is directed to surrender to serve out  the remainder of his sentence.  He shall be entitled to the benefit of set  off under Section 428 of the Code of Criminal Procedure.