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PETITIONER: JAGESHWAR AND OTHERS

       Vs.

RESPONDENT: STATE OF M.P.

DATE OF JUDGMENT:       23/04/1996

BENCH: THOMAS K.T. (J) BENCH: THOMAS K.T. (J) PUNCHHI, M.M.

CITATION:  JT 1996 (6)   159        1996 SCALE  (3)709

ACT:

HEADNOTE:

JUDGMENT:            (With Criminal Appeal No. 365 of 1987)                       J U D G M E N T Thomas, J.           Thirteen persons  were arraigned  for rioting  and murdering one  Ram Kumar  and assaulting  two others. Out of them the Sessions Court convicted only one  (Damodar) of the offences Sections  302 and  323 IPC, and he was sentenced to imprisonment for  life and RI foe 9 months respectively. All others were  acquitted. The convicted person filed an appeal before the High Court of Madhya Pradesh. The state of Madhya Pradesh filed  another appeal  against the  acquittal of the other accused.  The High Court dismissed the appeal filed by Damodar,but allowed  the state’s  appeal and convicted three more persons  of the  offence of  murder  with  the  aid  of Section 149 IPC, and a few other accused of lesser offences. The present appeals are at the instance of Damodar and those there others  who have  been convicted  of  the  offence  of murder read with Section 149 IPC.      Facts,in brief, of the case are these:      There is  an Ashram  owned by  Baba Jagat Mohan (PW-15) situated on  the bank  of Narmada River. Deceased Ram Kumar, Gaurishanker (PW-13),  Radheyshyam  (PW-14),  and  Dr.  N.K. Dubey (PW-12)  were the  disciples of  Baba Jagat  Mohan and were inmates  of the  Ashram. On 7.12.1982, Baba Jagat had a discussion with  the disciples  on how  to check anti_social elements who  were trying  to create  in the Ashram. By 8.30 P.M., appellant  Damodar accompanied by appellants Jageshwar and Durga  entered the  Ashram with hockey sticks and lathis and insisted  on having  a darshan of Baba. Radheyshyam (PW- 14) objected  saying that it was night time and that swamiji was taking  rest but  the appellants   attacked  PW-14. When Gaurishanker (PW13) tried to save his colleague Radheyshyam, the appellants  were reinforced  as other  assailants joined them. At  this stage  Ram Kumar came to the forefront of the Ashram and  asked  the  assailants  to  stop  attacking  the inmates of the Ashram. Then appellant Damodar gave a blow on

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the head  of the  deceased with  a hockey  stick.  This  was followed by  the other  three appellants  beating  him  with lathis. Damodar fell down. In the meanwhile Radheyshyam went inside the  Ashram and  hid himself  to escape  from further attacks but appellants traced him out and brought him to the front and  beat him  again. This is in substance the version put-forth by the prosecution.      There  is  no  scope  for  interfering  with  the  fact findings  that   appellant  mounted  the  onslaught  on  the deceased Ram  kumar and  his coinmates  of the  Ashram  with hockey sticks  and lathis.  We are of the view that the High Court has correctly arrived at the said conclusion on facts.      Learned counsel  for the appellants, however, convassed for scaling  down the  offence to Section 302 part II of the IPC. In the said attempt, learned counsel tried to show that none  of   the  injuries   sustained  by  the  deceased  was sufficient in  the ordinary course of nature to cause death. But a  perusal of  the Post-mortem  Certificate convinced us that  the   said  submission   of  the  learned  counsel  is unsupportable.      Dr. A.K  Yadu  (PW-1)  who  conducted  the  post-mortem examination has  described the  ante mortem injuries in Ext. P-1. Deccased had as many as 14 injuries, out of which 4 serious lacerated wounds were on the head. Those wounds were associated with depressed fracture of right temporal bone as well as  parietal  bone,  and  fracture  of  fronto-parietal suture, Meninges was torn and the brain matter was depressed and was  protruding out.  The Doctor  also  noted  sub-dural haemotoma all  over the  superior surface  of cerebrum. From the above description of the wounds we find little scope for holding  that  the  injuries  were  not  sufficient  in  the ordinary course of nature to cause death. We have absolutely no doubt  that the  assailants who  inflicted those injuries would have  used the  lethal weapons (here hockey sticks and lathis) and should have had the necessary knowledge that the injuries they  inflicted were  sufficient  in  the  ordinary course of nature to cause death.      Learned counsel  made a  last bid  to  distinguish  the individual acts of each appellant. But he did not succeed as the attack  was jointly  made by  the appellants.  Of course conviction under  Section 302 should have been made with the help of  section 34  IPC  and  not  Section  149  IPC.  That deficiency will  stand replenished.  We, therefore,  dismiss these appeals.