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                                                    NOT REPORTABLE

                  IN THE SUPREME COURT OF INDIA                   CRIMINAL APPELLATE JURISDICTION                   CRIMINAL APPEAL NO.186 OF 2008 RAMESH   KUMAR                         .... APPELLANT

                    VERSUS

STATE OF MADHYA PRADESH                 .... RESPONDENT

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                                                                 C                                                                  RIM                                                                  INA                                                                   L

                      APPEAL NO.185 OF 2008

GOPAL PRASAD                                .... APPELLANT

                    VERSUS

STATE OF MADHYA PRADESH                .... RESPONDENT

                         J U D G M E N T

C.K. PRASAD, J.

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1.   Both the appeals arise out of the common judgment dated 9th

October,    2006    passed   by   the   Division    Bench   of    the   Madhya

Pradesh    High    Court   in   Criminal   Appeal    No.946      of   1993   and

Criminal Appeal No.953 of 1993, hence, they were heard together

and are being disposed of by this common Judgment.

2.   Ramesh Kumar (appellant in Criminal Appeal No.186 of 2008)

and Gopal Prasad (appellant in Criminal Appeal -

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                                                                            of

2008), besides Pradhuman Prasad and Dwarika Prasad were put on

trial for commission of the offence under Section 341/34 and

302/34 of the Indian Penal Code. All of them were found guilty

on both counts by judgment dated 21st September, 1993 passed by

the Additional Sessions Judge, Sidhi in Sessions Trial No.17 of

1992. All of them were sentenced to undergo imprisonment for

life and rigorous imprisonment for six months for the offence

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under   Sections   302/34   and   341/34   of   the   Indian   Penal   Code

respectively. Ramesh Kumar as well as Dwarika Prasad, Gopal

Prasad and Pradhuman aggrieved by the judgment and order of

conviction and sentence preferred appeals before the High Court

which   were   registered    as   Criminal      Appeal   No.946/1993    and

Criminal Appeal No.953/1946 respectively.

3.   During the pendency of the appeal Dwarika Prasad died and

                                                                      his

appeal had abated.

4.   The High Court by the impugned Judgment had affirmed the

appellants’ conviction and sentence.            Conviction and sentence

of   Pradhuman     Prasad, though has been maintained by the High

Court but he has not -chosen to file any appeal before this

Court, perhaps on the ground that he had already undergone the

sentence awarded to him.

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5.     According to the prosecution, a litigation was going on

between the accused Dwarika Prasad and PW.4 Chander Bhan Yadav,

PW.6    Ram   Sahai       and    other   persons       and    on   29.11.1991    the

informant Chander Bhan Yadav had gone to Civil Court, Sidhi to

attend the hearing of the case along with Ramdhani (deceased)

and PW.6 Ram Sahai.             After attending the hearing of the case,

according     to    the    prosecution,      while     they   were   returning    to

their home and reached near Tola Parkhure in village Bihirya,

all the four accused, which included the two appellants herein,

who were hiding behind the tree came out and accused Dwarika

pointed   his      gun    on    Ramdhani,    whereas    convict      Pradhuman   and

appellant     Ramesh       assaulted        him   by    "lathi"      and   "danda".

Appellant Gopal Prasad then attempted to beat Ram Sahai, who

along with the informant ran away from the place of occurrence.

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Chander Bhan Yadav gave report to the Police and on the basis

of    that    Crime       No.411   of   1991   was    registered      under   Section

341/307/34 of the Indian -

Penal    Code    at       Police   Station     Kotwali,   Sidhi.        The   injured

Ramdhani died later on and consequently offence under Section

302/34 of the Indian Penal Code was also added.

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Police       after    usual    investigation         submitted    chargesheet     and

ultimately the appellants were committed to Court of Sessions

to face the trial.            They were charged for wrongful confinement

and     murder       of    Ramdhani     in     furtherance       of   their    common

intention; punishable under Section 342/34 and 302/34 of the

Indian Penal Code.             Appellants denied to have committed any

crime and claimed to be tried.

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7.   In   order   to   bring   home   the   charges,   prosecution,

altogether examined ten witnesses out of whom PW.4 Chander Bhan

Yadav and PW.6 Ram Sahai claimed to be eye-witnesses to the

occurrence. PW.7 Dr. S.P. Khare happens to be an Assistant

surgeon and had conducted the postmortem examination on the

dead body of the deceased Ramdhani. He had also proved the

postmortem report. He had found the following external injuries

                                                              on

                                                              the

person of the deceased :

               1               2 Contusion linear in shape 10X2 Cm. reddish                  in colour present on the rt. Infra scapular                  region in axillary line obliquely placed;

             1 Contusion linear in shape 8X2 Cm. reddish                 blue in colour present on left infra-                 scapular region in axillary line obliquely                 placed;

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1 Contusion linear in shape 10X2 Cm. present   over upper scapular region and reddish blue   in colour;

1 Contusion 6X2 Cm. present over left lumber   region;

1 Contusion linear in shape 10X2 Cm. reddish   blue in colour present over upper scapular   region on rt. side;

1 Contusion over mid scapular region 6X2 Cm.   on rt. Side reddish in colour; and

1 Contusion over left arm on lat. Aspect,      just above elbow joint 4X2 Cm. overlying      which lacerated wound present 2X1 Cm.      clotted blood present over the wound.

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8.    According to the Doctor external injury Nos.1 and 2 had

led to the fracture of the ribs of the deceased.

9.    Relying     on   the   evidence   of    PW.7   Dr.   Khare     and   the

postmortem report the trial court came to the conclusion that

Ramdhani   died    a   homicidal   death.      Further,    relying    on   the

evidence of the eyewitnesses PW.4 Chander Bhan Yadav and PW.6

Ram Sahai, the trial court came to the conclusion -

                                                                          t

                                                                          hat

                                                                          the

prosecution had proved appellants’ participation in the crime

beyond all reasonable doubt and convicted and sentenced the

appellants   as    above.    Appellants     preferred   separate     appeals,

which have been dismissed by the impugned judgment.

10.   Mr. S.K. Dubey, Senior Advocate appearing on behalf of the

appellants submits that in view of the evidence on record he

legitimately cannot assail the conviction of the appellants but

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in his submission, even if the case of prosecution is accepted

in its entirety, no offence under Section 302/34 of the Indian

Penal Code is made out. He submits that the allegations proved

at best make out a case under Section 326 of the Indian Penal

Code.

11.   Ms.   Vibha   Datta   Makhija,   learned   Counsel   appearing   on

behalf of the respondent submits that the allegations proved

clearly make out a case under Section            302/34 of the Indian

Penal Code and the courts below did not err in convicting the

appellants as above.

12.   We    have    considered   the   rival     submissions   and     the

submissions made by Mr. Dubey commend us. We         have -

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extracted in the preceding paragraph of our judgment; injuries

sustained by the deceased and from a perusal thereof                                  it is

difficult to hold that the appellants intended to cause such

bodily     injuries        which    they    knew    to    be    likely      to    cause    t he

death. From that it is also not imperative that the appellants

intended to cause bodily injury which is sufficient in the

ordinary course of nature to cause death. The injuries found on

                                                                                          t he

person of the deceased also do not indicate that it is so

imminently       dangerous         that    it   must     in    all    probability     cause

death or such bodily injury is likely to cause death.                                It has

to   be    borne     in    mind     that    the    intention         of   the    accused     is

gathered from the nature of the weapon used, the part of the

body      chosen     for    assault       and   other     attending        circumstances.

Here      in   the   present       case    according      to    the       prosecution      t he

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weapon used for commission of the crime is "lathi" and "danda"

and the part of the body chosen cannot be said to be a vital

part of the body.         Further the injuries are contusions. It

seems    that   the    deceased    was   not      taken   to   the   hospital

immediately after the occurrence and he died. Perhaps, his life

could have been saved had he given the medical aid immediately.

In -

                                                                          v

                                                                          iew

                                                                          of

what we have observed above the ingredients for the offence of

murder is not made out. However, the appellants have caused

grievous   hurt   by   dangerous    weapon     in   furtherance      of   their

common intention and as such the facts proved make out the

offence under Section 326/34 of the Indian Penal Code.

13.    Accordingly,    the   conviction      of     the   appellants      under

Section 302/34 is set aside and altered to Section 326/34 of

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the Indian Penal Code.      We are of the opinion that sentences to

undergo imprisonment for a period of seven years shall meet the

ends of justice and we order accordingly.                         We do not find any

error in their conviction and sentence under Section 342/34 of

the Indian Penal Code and the same is maintained.

14.   In the result, the appeals are partly allowed with the

aforesaid modifications in the conviction and sentence.

                                                                               .........                                                                                 .........                                                                                 .........                                                                                 .....                                                                                 J.

     (Harjit Singh Bedi)

                                    .................................J. NEW DELHI,                          (C.K. Prasad) May 7, 2010.