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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 ½ “ 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.