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CASE NO.: Appeal (crl.) 125  of  2000

PETITIONER: MAJJU & ANR...

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH..

DATE OF JUDGMENT:       19/10/2001

BENCH: U.C.Banerjee, K.G.Balakrishna

JUDGMENT:

K.G. BALAKRISHNAN,  J.

       The two appellants herein were tried by the Sessions  Judge, Shajpur in Madhya Pradesh, along with nine others for the various offences punishable under Sections 302, 148, 323, 341 read with section 149 IPC.    The learned Sessions Judge acquitted three of the accused and  found others guilty of all the offences charged.   The accused who were convicted by the Sessions Court filed an appeal and the Division Bench  of  the Madhya  Pradesh  High Court, Bench at Indore,  acquitted  six  of the  appellants  and found guilty the present appellants for the offences under Section 302/34 IPC and they were  sentenced to undergo imprisonment for life.   The above conviction and sentence are   challenged     before  us.

       We  heard  the appellants learned counsel, Mr. Niraj Sharma. The learned counsel contended that the  appellants have been wrongly convicted as  the evidence adduced by the prosecution was highly interested  and that  there was a free fight between two factions and the appellants have not committed any criminal offence.

       Briefly stated,  the prosecution case is that on 20.7.1987 Ayyub Khan, the third accused before the Sessions Court,  used  some abusive words against  Ganesh, son of deceased Bihari Lal, whereby   Ganesh   felt  irritated  and  slapped  Ayyub.     People of the locality   then  persuaded  the parties  to  compromise the matter and there was no further incident.      But   on  24.7.1987  at  about 2.00 PM when deceased Bihari Lal and his brother  Ramchandra along with their children were returning  after performing some ceremony at the temple,  the appellants and other  accused, who were waiting for them  on the way  stopped  Bihari Lal and others. Bihari Lal   was carrying  a gun with him and according to prosecution, accused   Nawab snatched  away  that   gun   from Bihari Lal and thereafter  all the accused started beating Bihari Lal. The accused were carrying Farsi and Sticks.    The first  appellant Majju alias Nasir hit deceased Bihari Lal with a Stick and the second appellant Irshad hit  Bihari Lal with a Farsi on the head.    Bihari  Lal fell unconscious.   He was taken to Shajpur hospital but as his

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condition was serious he was  immediately  removed to  M.Y. Hospital, Indore, where,   while undergoing  treatment,  he died. Ramchandra, the brother of the deceased Bihari Lal also had sustained injuries.     According  to the prosecution,  in the meanwhile,   somebody  had informed the  police and pursuant thereto  the police came to the place of  occurrence and recorded the statement   of  Ganesh,   son of  Bihari Lal.      PW-13   took   over the investigation and the dead body of the deceased was sent for post mortem examination.     PW-14, Dr. D.S. Mehta,  examined the deceased  and  found that he had five incised wounds   --   two  on the  head,    one on the leg   and two on arms, and  these injuries were caused by a  sharp cutting weapon.     PW-8, Dr. Vijay Agrawal, who conducted the post-mortem,  stated   that  injuries  4 and 5  were not caused by a cutting weapon but by some blunt weapon.   He opined that death was caused  due to head injury.

       On the side of the prosecution, four eye-witnesses, namely, Ganesh [PW-1];  Laxminarayan [PW-2];  Ramchandra [PW-6] and Subhash [PW-7] were examined.     All these witnesses gave evidence of identical nature with minor contradictions.

       The counsel for the appellants contended that the evidence adduced by the prosecution was interested and therefore, it cannot be relied upon.     It is important to  note that the witnesses examined on the side of the  prosecution were all injured in the incident.  PW-6 Ramachandra   sustained  a   grievous injury, in the sense that he lost one of his teeth.   The other witnesses also sustained injuries. That  is proved  by  the various medical certificates issued by the doctor who examined them.   Therefore, the presence of these witnesses at the place of occurrence cannot be suspected.    All these witnesses gave evidence to the effect that when they along with deceased Bihari Lal were coming from the temple after performing some ceremony,  the accused surrounded and attacked them.    We do not  find any infirmity in the evidence of these witnesses.

       The   counsel  for   the   appellants contended  that the  doctor, who conducted the  post mortem examination deposed that there were no incised injuries as stated  earlier by another doctor  who first examined the deceased  Bihari Lal.     In our opinion, it is not a serious mistake as there are  four eye-witnesses in this case who deposed that appellants Majju alias Nasir      and Irshad were having Farsi with them  and they inflicted cut injuries on  Bihari Lal.    PW-8 Dr. Vijay Agrawal conducted the post-mortem and described the injuries in a hap-hazard manner without proper description of the wounds  as to  whether these were incised injuries or lacerated injuries.   But the doctor who examined the injured immediately after the occurrence of  the incident, described the nature of  injuries and that is fully  in conformity with the oral evidence given by the witnesses.   The Sessions Judge as well as the High Court has rightly relied on the evidence of the doctor who prepared the wound certificate of the deceased.

       The counsel for the appellants further contended that there was a free fight between two groups and it is not possible to decide as to who caused the fatal injuries to the deceased and therefore, the appellants should have been found guilty of offence under Section 326 IPC alone.     It is true that there was an attack by a group of persons against the deceased and others accompanying him.    In view of some doubts regarding the complicity of some of the assailants, the Sessions Court as well as the High Court extended the benefit of doubt to those accused,   but as regards the present appellants,   there is strong and consistent evidence to the effect that they had given the  blows by Farsi to the  deceased  Bihari Lal. Their acts were described even in the First Information Report and all

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the eye-witnesses  deposed that the appellants had caused the injuries to  the deceased Bihari Lal.   Therefore, we do not find any infirmity in the decision rendered by the High Court in finding these appellants guilty of the offence under Section 302 read with Section 34 IPC.    There is no merit in the appeal and the same is dismissed accordingly.

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