Dr. ARIJIT PASAYAT,J.
Delay condoned.
Leave granted.
Challenge in this appeal is to the judgment of the Division
Bench of Madhya Pradesh High Court at Indore affirming the conviction of the appellant recorded by the learned Additional Sessions Judge,
Kukshi ( District Dhar) in Sessions Trial No. 90/2000. One of the co-
accused person Nanki Bai was acquitted. The accused were convicted
read with Sec.34 of the Indian Penal Code, 1860 (in short `the IPC'). They
two convictions were recorded as the accused persons inflicted injuries
to Thavlibai PW.3 and Thakur Singh PW.2.
Prosecution version in a nutshell is as follows:
On 9/12/1999 at 7.40 p.m., FIR (Ex.p/9) was lodged by
Thakur Singh at 9.35 a.m. While the mother of the complainant Thakur
Singh and his father Jogadia were sitting on their `otla' outside the
house, the accused persons approached towards the deceased and the
witnesses stating that their mother Thavlibai was engaged in witchcraft,
started beating the deceased Jogadia and his wife Thavlibai. When
witnesses tried to save them, they were also extended the same
treatment, with the result Thavlibai, after sustaining injuries over her
head and mouth, became unconscious and Jogadia succumbed to the
injuries. After so assaulting the deceased and his wife, the accused
persons fled away.
As the complainant Thakur Singh was injured, he was sent
for medical examination under Requisition Ex.P/1, and Thavlibai under
Ex.p/2. After examination of their injuries, Dr. S.L. Mujalda (PW.1) issued
injury reports Exs.P/3 and P/4. The investigating officer proceeded to
the spot and took samples of blood stained and plain earth as also the
blood stains lying on the ground. Inquest was held and inquest memo
Ex.P/16 was prepared. The body was forwarded to the hospital for autopsy and Dr. S.L. Mujalda (PW.1), after autopsy, issued post-mortem
report Ex.P/6. According to the testimony of the said Doctor and his
report Ex.P/6, the following external injuries were found on the body of
the deceased.
1Contusion wound 6 cm. x 3 cm at root of nose. Fracture
of Nasal bone;
2Laceration wound 4 cm x 3 cm on front of head at left
side of the mid line;
3Laceration wound 8 cm x 3 cm at the top of the head
(skull) fracture of skull bone at the parietal area, fracture
simple;
4Laceration wound 4 cm x 5 cm at right side of the head
at front area;
5Laceration wound 6 cm x 4 cm at occipital area of head.
The Dr. S.L.Mujalda (PW 1) opined that death occurred on
account of haemorrhagic shock due to head injury.
The accused were arrested and the seized articles were
sent for examination to the Forensic Science Laboratory. After
completion of the investigation charge-sheet was filed. The accused
persons pleaded innocence. The trial Court hold them guilty.
Three appellants before the High Court i.e. Mal Singh, Lal
Singh and Juansingh were convicted by the trial Court while Nanki Bai
was acquitted. The trial Court referred to the evidences of PWs. 2,3,4,5
and 6 who claimed to be eye witnesses. The trial Court placed reliance
on these witnesses and recorded conviction. Before the High Court the
main question raised related to the applicability of Sec.34 IPC. The trial
Court found
that Sec.34 had clear application. The impugned judgment of the trial
Court was in question before the High Court. In case of the present
appellant the conviction under Section 302 read with Sec.34 was altered
and the appellant was convicted in terms of Sec.302. The other two
appellants Lal Singh and Juansingh were acquitted of the charge under
Secs. 323/34 IPC. The accused Juansingh was convicted in terms of
done primarily on analysis of the evidence produced qua the accused
and co-accused Lal Singh and Juansingh.
In support of the appeal learned counsel for the appellant
submitted that the role was attributed to three accused persons and not to the appellant alone. When the co-accused were acquitted the
appellant should not have been convicted. Alternatively it is pleaded
that the case is not covered under Sec.302 IPC.
The evidence of one of the eye witnesses i.e. PW.3 who
also suffered injuries was to effect that the appellant hit the deceased
with stones which hit him on the skull. It was also pointed out in
evidence that Mal Singh also threw 10-12 stones in all at the deceased
and Juansingh also hit the deceased with stones. The report of the
Doctor (PW.2) shows that there was fracture of skull bone. There was
also fracture of the nasal bone. There was lacerated wound on the right
side of the head at front area and lacerated wound at occipital area of
the head.
These injuries clearly show that the murder was clearly intended. That
being so, the conclusion of the High Court does not warrant
interference. Hence, the appeal is dismissed.
We record our appreciation to the assistance rendered by
Ms. Indira Sawhney who appeared as amicus curiae.
(ASOK KUMAR GANGULY) New Delhi, April 28, 2009.