Gopal vs State Of M.P

REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1710 OF 2007

GOPAL ....APPELLANLT

VERSUS

STATE OF MADHYA PRADESH ....RESPONDENT

WITH

CRIMINAL APPEAL NO. 1711 OF 2007

STATE OF MADHYA PRADESH ....APPELLANT

VERSUS

SHANKARLAL AND OTHERS ....RESPONDENTS

O R D E R

This order shall dispose of Criminal Appeal No.1711 of 2007

also as both the appeals arise out of the common judgment and

order passed by the Division Bench of the High Court of Madhya

Pradesh at Indore, in Criminal Appeal No. 328 of 1995, preferred

by accused Gopal and Criminal Appeal No. 429 of 1998 preferred by

accused Shankarlal, Nandlal, Dinesh and Chhote @ Chhotalal decided

on 19.10.2005.

2. Five accused were charged and prosecuted for commission of

offences punishable under Section 147, 148, 302/149, 323/149 IPC

in the court of 3rd Additional Sessions Judge, Ratlam, Madhya

Pradesh in Sessions Case No. 227 of 1992. The Trial Court

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pronounced the judgment on 31.3.1995, holding the accused Gopal

guilty for commission of offences under Sections 148, 302,323/149

IPC, accused Shanker Lal and Nand Lal under Sections 148,302/149,

323 IPC, accused Chhotelal and Dinesh under Sections

148/302/149,323/149 IPC and awarded punishment together with

fine as described in its judgment.

3. Against the said judgment and order, as mentioned

hereinabove, two criminal appeals were preferred before the

Division Bench of the High Court, which were disposed of by the

common impugned judgment.

4. The High Court, in the appeal of Gopal, has found him

guilty for commission of offence under Section 304 Part-I IPC and

awarded rigorous imprisonment for 10 years, whereas in the other

Criminal Appeal, accused Shankarlal, Nandlal and Chhotelal were

found guilty for commission of offence under Section 324 IPC and

awarded sentence to the period already undergone by them with fine

of Rs. 200/- each. The accused Dinesh was not found guilty for

any of the offences and was, accordingly, acquitted.

5. State has preferred appeal only against that part of the

judgment and order, whereby accused Shankarlal, Nandlal and

Chhotelal have been found guilty under Section 324 IPC and accused

Dinesh has been acquitted. Accused Gopal has preferred appeal on

the ground that in view of the free fight between accused and the

complainant party and the nature of injuries sustained by some of

the accused persons, he deserves to be acquitted.

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6. It is pertinent to mention here that State has not

preferred any appeal against the judgment of the High Court

wherein and whereunder conviction and sentence awarded to accused

Gopal under Section 302 IPC was altered to one under Section 304

Part-I IPC. In this view of the matter, the State cannot

challenge that accused Gopal should have been convicted under

Section 302 IPC.

7. The prosecution story, in short, is as under:

That on 30.6.1992, a meeting of a Patidar Community was

convened wherein Ramchandra was not present. On 1.7.1992, a

panchayat meeting was also convened by Ramchandra wherein

Shankarlal was present but, due to some reason, the meeting could

not be held. Thereafter, on the same day, when Tulsiram,

Ramchandra, Mitthulal and Shantilal were passing from the house of

Shankarlal, accused Gopal abused them and inflicted knife blow

on the chest of Mitthulal, accused Shankarlal inflicted sword blow

on Ramchandra and Nandram inflicted sword blow on Kalu. Accused

Chhotelal inflicted blow by cycle-chain on Tulsiram. On account

of injury sustained by Mitthulal on his chest, caused by accused

Gopal, with the aid of knife, he fell on the ground and died

instantaneously. Accused Dinesh was pelting stones on the injured

persons.

8. A report of the incident was lodged by Tulsi Ram vide Exb

P-12. Investigation commenced on the strength of the report

lodged by Tulsi Ram. Police prepared spot map and arrested

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accused persons and at their instance, weapons of offence were

recovered. Dead body of Mitthulal was sent for post-mortem

examination and the injured were sent to hospital for their

medical examination and treatment.

9. PW-4 Dr. Deep Vyas conducted post-mortem on the body of the

deceased. He had found stab wound measuring 2" x = " on the

abdomen. Omentum was coming out with profuse bleeding. On

internal examination, he found a wound on liver measuring 2" x 1".

The diaphragm was found out. In the opinion of Dr. Deep Vyas,

Mitthulal died due to syncope on account of shock and hemorrhage

caused by stab injury. Exb. P-8 is the post-mortem report.

10. On account of the aforesaid evidence, it could not be

disputed before us that Mitthulal had met with homicidal death.

11. After completion of the investigation, all the accused were

charge-sheeted. They pleaded not guilty to the charges and

pleaded that they were falsely implicated in this case. They had

taken a specific defence to the effect that Ramchandra, Tulsiram,

Mitthulal, Kaluram and Shantilal had come to their house and

abused them and started beating accused Shankarlal and on the

intervention of accused Gopal, he too was assaulted by knife.

According to them complainant party was the aggressor.

12. The prosecution, in order to bring home the charges

levelled against the accused, examined 13 witnesses. In defence,

the accused had also examined two witnesses. However, on

appreciation of the evidence, available on record, Trial Court

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found them guilty for the offences as mentioned hereinabove.

13. In appeal before the High Court, accused Gopal has been

found guilty under Section 304 Part-I IPC and was sentenced to

undergo rigorous imprisonment for 10 years, whereas other accused

namely; Shankarlal, Nandlal and Chhotelal have been found guilty

only under Section 324 IPC and have been let off on the period

already undergone which varies from 77 to 79 days with fine, and

accused Dinesh has been completely acquitted of all the charges.

Hence, these appeals by accused Gopal and State of Madhya Pradesh.

14. We have accordingly heard learned counsel appearing for the

parties and gone through the lengthy record.

15. Mr. Subhash Kaushik, learned counsel appearing for the

appellant Gopal contended that from record it proved that the

complainant party was not residing in village Harthali. They

along with other persons were called by one Poonamchand to attend

the Panchayat of their community but on the date of incident, the

Panchayat could not be convened and the complainant party, while

returning back to Ratlam, attacked accused Shankarlal in front of

his house causing injury to him as well as to the accused Gopal.

Since, injuries were sustained by Shankarlal and Gopal. They,

therefore, had acted in self defence. It was also contended by

learned counsel for the accused Gopal that the prosecution has

failed to explain the injuries sustained by Shankarlal and Gopal

and the complainant party was aggressor.

16. On the other hand, Mr. S.K. Dubey, learned senior counsel

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appearing for the State has strenuously contended before us that

the evidence has not been read properly inasmuch as accused Gopal

deserves to be convicted under Section 302 IPC, even though he

might have inflicted only single injury on the chest of Mitthulal.

It was further contended that Mitthulal had died instantaneously

which shows the nature and the force with which the injury was

caused by accused Gopal on the chest of Mitthulal. It was further

contended that other accused persons could not have been convicted

only under Section 324 IPC, whereas the injuries sustained by the

complainant party were serious in nature. It was also argued that

the sentence of period already undergone with fine of Rs.200/- of

each was too lenient and deserves to be enhanced.

17. As mentioned hereinabove, since there is no appeal

preferred by the State against that part of the judgment whereby

the accused Gopal has been found guilty for commission of offence

under Section 304 Part-I IPC and acquitted under Section 302 IPC,

we are afraid, there cannot be any scope for considering the

conviction of accused Gopal from Section 304 Part-I to 302 IPC.

18. As regards other accused, the High Court has assigned

cogent and valid reasons as to why they have been found guilty for

commission of offence under Section 324 IPC. The High Court has

also noted that the injuries sustained by the accused persons have

not been explained by the prosecution at all. Apart from the

above, from the evidence of PW-5 Dr. B.E. Boriwal, it has also

come on record that the injuries sustained by injured persons

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were simple in nature. This aspect of the matter has been dealt

with by the High Court in paras 8 & 9 of the impugned judgment.

19. In the light of aforesaid contentions, we are of the

considered opinion that the appeal of accused Gopal can only be

allowed in part to the extent that his conviction has to be upheld

under Section 304 Part-I IPC but sentence can be reduced to the

period already undergone by him, which is more than six years.

This, according to us, would meet the end of justice. However, in

Criminal Appeal No. 1711 of 2007, we find absolutely no merit or

substance and the same deserves to be dismissed.

20. In the result, Criminal Appeal No. 1710 of 2007 filed by

accused Gopal is partly allowed inasmuch as his conviction under

Section 304 Part-I IPC is upheld but sentence is reduced to the

period already undergone by him. He be released from the jail

immediately if not required in any other case. Criminal Appeal

No. 1711 of 2007 filed by the State is hereby dismissed.

............................J. [ ASOK KUMAR GANGULY ]

..........................J. [ DEEPAK VERMA ] NEW DELHI MAY 19, 2011.