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       REPORTABLE    

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 673 OF 2008

Ramswaroop and Another                  ....  Appellant(s)

Versus

State of Madhya Pradesh            .... Respondent(s)      

J U D G M E N T

P.Sathasivam,J.

1) This appeal  has been filed against  the judgment  and  

order dated 25.08.2005 passed by the High Court of Madhya  

Pradesh, Bench at Gwalior in Criminal Appeal No. 82 of 1992  

whereby the Division Bench of the High Court partly allowed  

the appeal  and confirmed the judgment  dated 02.04.1992  

passed  by  the  IInd  Additional  Session  Judge,  Shivpuri,  

Madhya Pradesh in Session Case No. 157/1989 against the  

appellants  herein  under  Sections 148,  302 read with 149,  

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452 and 325 read with 149 of the Indian Penal Code, 1860  

(for short ‘IPC’).   

2) Brief facts:

(a) As  per  the  prosecution,  on  09.09.1989,  at  about  12  

noon, two cows belonging to Badri (since deceased) entered  

into the field of Ramjilal and Badri (accused), who is having  

the same name as that of the deceased and damaged the  

crops standing in the field which resulted into an altercation  

between them.  During altercation, Badri  (since deceased)  

inflicted  a  lathi  blow  on  the  head  of  accused-Badri  and,  

thereafter,  he  ran  away  from  the  spot.   Thereafter,  the  

appellants  herein  along  with  Ramjilal,  Badri,  Roshan  and  

Brijmohan carrying luhangi (lethal weapon) and lathis in their  

hands reached the house of Badri (since deceased).   

(b) It  is  the  further  case  of  the  prosecution  that  Chintu  

Mahte (Appellant No. 2 herein) dragged him from his house  

and  Ramswaroop (Appellant  No.  1  herein)  gave a  luhangi  

blow on the left  rib of the deceased.  Ramjilal  and Chintu  

Mahte gave lathi blows on his neck and left rib respectively.  

Roshan gave a lathi blow on his neck and Badri (accused)  

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gave a lathi blow on his left cheek.  The above said acts of  

the accused resulted into severe injuries on the body of the  

deceased  which  were  sufficient  to  cause  death  in  the  

ordinary course of nature.

(c) During  the  above  said  incident,  Gourabai  (PW-5),  

mother of the deceased, rushed to save her son whereupon  

the accused Badri gave a lathi blow on her right hand due to  

which she also sustained injuries.  

(d) On the very same day, i.e. on 09.09.1989, Badri (since  

deceased) along with his mother and son-Narayan (PW-11)  

lodged an FIR at Police Chowki Amol Patha based on which  

Crime No. 12/1989 under Sections 147, 148, 149, 325 and  

452  of  IPC  was  registered  against  the  accused  persons.  

Thereafter, Badri (since deceased) was immediately rushed  

to the hospital for medical examination and treatment but he  

died on the way.  Gourabai  (PW-5) – the injured was also  

referred for medical examination.  

(e) After  completion of  the  investigation,  a  charge sheet  

was filed against  all  the accused persons for  the offences  

punishable under Sections 148, 302 read with Sections 149,  

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452 and 325 read with Section 149 of IPC and the case was  

committed  to  the  Court  of  IInd  Additional  Session  Judge,  

Shivpuri and numbered as Session Case No. 157/1989.   

(f) The  Additional  Session  Judge,  by  judgment  dated  

02.04.1992,  convicted  all  the  accused  persons  under  

Sections 148, 302 read with Sections 149, 452 and 325 read  

with  Section  149  of  IPC  and  sentenced  them  to  suffer  

rigorous imprisonment (RI) for 1 year under Section 148 of  

IPC, life imprisonment under Section 302 read with Section  

149 of IPC and RI for  2 years for the offences punishable  

under Section 452 and Section 325 read with Section 149 of  

IPC.  

(g) Aggrieved by the judgment and order of the Additional  

Session Judge, all the accused persons preferred an appeal  

being Criminal Appeal No. 82 of 1992 before the High Court  

of Madhya Pradesh, Bench at Gwalior.  

(h) By  impugned  judgment  and  order  dated  25.08.2005,  

the  High  Court  confirmed  the  conviction  and  sentence  of  

accused Ramswaroop and Chintu Mahte (appellants herein)  

under  all  the  charges.   The appeal  in  respect  of  accused  

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Badri was abated due to his death during the pendency of  

the appeal.  The High Court set aside the conviction of rest of  

the appellants therein, namely, Ramjilal, Roshan Lal and Brij  

Mohan under Section 302 read with Section 149 of IPC while  

affirming the  conviction under  Sections 148,  452 and 325  

read with Section 149 of IPC and modified the sentence to  

the period already undergone.  

(i) Questioning the conviction and sentence, Ramswaroop  

and  Chintu  Mahte,  the  appellants  herein  filed  the  above  

appeal.     

3) Heard  Mr.  Lakhan  Singh  Chauhan,  learned  counsel  

appearing for  the appellants-accused and Ms. Vibha Datta  

Makhija, learned counsel appearing for the respondent-State.

4) The  only  point  for  consideration  in  this  appeal  is  

whether the prosecution has established its case against the  

present appellants beyond reasonable doubt?   

5) Since the present  appeal  relates  to Ramswaroop and  

Chintu  Mahte  (appellants  herein),  there  is  no  need  to  

traverse the role of all the other accused.  There is no serious  

dispute about unlawful assembly by the accused persons and  

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initial incident of causing damage of crops by the cows of the  

complainant.  It is also clear from the materials placed by the  

prosecution  that  after  the  altercation  in  the  field,  all  the  

accused  armed  with  lathis  and  weapons  in  their  hands  

chased the deceased and entered into his house.       

6) The prosecution heavily relied on the evidence of the  

injured  eye-witness  Gourabai,  who  is  none  else  than  the  

mother  of the deceased, who also sustained injuries while  

saving  her  son  at  the  hands  of  the  accused.   She  was  

examined as PW-5.  

7) Gourabai (PW-5), in her evidence, has stated that their  

cows had damaged the crops standing in the field of Badri.  

She also explained that  when accused-Badri  was trying to  

take away their cows to the cattle pond, her son Badri (since  

deceased) reached there and there was heated altercation  

between them.   According to her,  the incident  took place  

near  their  house  and  the  fields  of  the  accused  are  also  

situated  opposite  to  her  house.   She  explained  that  after  

entering  into  her  house,  the  accused  persons  gave  lathi  

blows to the deceased and when she intervened, she was  

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also  beaten  up  and  her  left  hand  was  broken.   She  

specifically  named  the  persons  including  the  present  

appellants who inflicted fatal blows on the chest of her son.  

It is further seen from her evidence that her injured son was  

taken  to  the  Police  Station  and  it  was  he  who  made  a  

complaint about the occurrence and from there he was taken  

to the hospital for treatment, however, he died on the way to  

hospital.  Inasmuch as PW-5 being an injured witness, who, in  

fact, tried to save her son at the hands of the accused, after  

going  into  her  entire  statement,  we  concur  with  the  

conclusion arrived at by the trial Court as well as the High  

Court insofar as the present appellants are concerned.

8) It  is  not  in  dispute  that  PW-5  also  sustained  injuries  

while saving her son and was present at the spot.  She was  

medically examined by Dr. R.K. Goel (PW-14), who submitted  

the report which states as under:

“He had seen two contusions.  One of size 3 cm x 2 cm on  the middle of right forearm, above this injury, there was a  lacerated wound of size 1 cm x ½ cms.  Swelling was also  there and the same was paining on touching.  The other  contusion was on the upper side of left forearm of size 1  cm  x  1  cm.   For  injury  No.1  X-ray  examination  was  advised.  Injury No.2 was found simple in nature.  Both the  injuries  were  caused  by  some  hard  and  blunt  object.  Ramkishan (PW-10) is the witness of inquest report as well  

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as  notice  (Ex.P/24)  which  was  issued  to  him  for  preparation of the same.”

In such circumstance, we fully accept the evidence of PW-5  

and conviction based on her  statement  is  acceptable  and  

sustainable.  

9) Coming to the injuries sustained by the deceased at the  

hands of the accused, Dr. S.P. Jain (PW-4) had performed the  

post  mortem on  the  dead  body  and  found  the  following  

injuries:

“1. One contusion over left Pectoral region extending upto  amilla of size 8 cm x 4 cm. 2. One abrasion of right side of chest lower part of size 5  cm x 1 cm.  On opening of chest, fractures were found on the 4 th, 5th,  6th and 7th rib.  Pleura was also found torn.  The middle and  upper part of left lung was also found torn.  About one litre  of blood had collected in pleura cavity.  Both the chambers  were  empty.   Injuries  were  caused  by  hard  and  blunt  object within twenty four hours.  His examination report is  Ex.P/7.  In the re-examination he has submitted that the  injuries mentioned in the post mortem report (Ex.P/7) were  sufficient to cause death in the ordinary course of nature.”

10) Narayan (PW-11), son of the deceased, is also an eye-

witness  to  the  incident.   He  witnessed  the  incident  and  

narrated the whole story alleging the role played by each one  

of the accused but his statement was recorded after 14 days  

and no explanation was offered for the same.  Even if we  

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eschew the evidence of PW-11, as observed earlier, there is  

no reason to disbelieve the version of injured eye-witness  

(PW-5), mother of the deceased.   

11) The High Court has rightly concluded that the present  

appellants, viz., Ramswaroop and Chintu Mahte have caused  

fatal blows due to which Badri succumbed to injuries while on  

the way to hospital.  Also, as per the medical evidence, the  

injuries  received  by  him  at  the  instance  of  the  present  

appellants  were  sufficient  to  cause  death  in  the  ordinary  

course of nature.  

12) Finally, learned counsel for the appellants while pointing  

out that Ramswaroop (Appellant No. 1 herein) has served 7  

years,  4  months  and  18  days  in  jail  and  Chintu  Mahte  

(Appellant No. 2 herein), aged about 80 years, has served 6  

years, 4 months and 18 days, pleaded for leniency.  We are  

unable to accept the above claim of the learned counsel for  

the appellants since the prosecution has established its case  

beyond  reasonable  doubt,  particularly,  the  role  of  the  

appellants who caused fatal injuries.  Since we are affirming  

the conviction under Section 302, the Court cannot impose a  

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lesser  sentence  than  what  is  prescribed  by law,  however,  

taking  note  of  the  age  of  Chintu  Mahte  (Appellant  No.  2  

herein),  he  is  free  to  make  a  representation  to  the  

Government for remission and if any such representation is  

made, it is for the Government to pass appropriate orders as  

per  the  rules  applicable.   In  the  above circumstance,  the  

sentence cannot be altered to the period already undergone  

and  the  said  request  of  the  counsel  for  the  appellants  is  

rejected.  

13) Under  these  circumstances,  there  is  no  merit  in  the  

appeal, on the other hand, we fully agree with the conclusion  

arrived at by the High Court.  Consequently, the appeal fails  

and the same is dismissed.               

………….…………………………J.                   (P. SATHASIVAM)                                  

       ………….…………………………J.                   (JAGDISH SINGH KHEHAR)   

NEW DELHI; MARCH 12, 2013.

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