1

NON­REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1411 OF 2013

State of Madhya Pradesh .. Appellant

Versus

Kalicharan & Ors. .. Respondents

J U D G M E N T

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 18.11.2008 passed by the High Court

of Madhya Pradesh, Judicature at Jabalpur, Bench at Gwalior in

Criminal  Appeal  No.  43  of  1997 whereby the  High  Court  has

partly allowed the said appeal preferred by the original accused

and set aside the judgment and order of conviction and sentence

dated

2

16.01.1997 passed by the learned Trial Court, whereby the

learned Trial Court convicted the respondent­original accused for

commission of the offence under Sections 148, 302/149,

325/149, 323/149 of the IPC and altered the conviction of the

accused­Ramavtar from Section 302/149 of the IPC to Section

304 Part II of the IPC and sentenced him to five years R.I. with

fine  of  Rs.5000/­  and set  aside  his  conviction for the  offence

under Sections 148 and 302/149 of the IPC; altered the

conviction of the accused­Kalicharan to offences under Sections

323 and 325 of the IPC and reduced the sentence to the period

already undergone; set aside the conviction of the accused­Amar

Singh, Kedar, Abhilakh and Ramgopal under Sections 148,

302/149, 325/149 and 323/149 of the IPC and acquitted them

from the charges levelled against them; set aside the conviction of

the accused­Tejsingh, Gangaram and Vedari under Sections 148,

302/149 and 325/149 of the IPC and convicted them for

commission  of the offence  under  Section  323  of the IPC  and

reduced the sentence to the period already undergone by them,

the State has preferred the present appeal.

2. We have heard the learned advocates appearing on behalf of

the respective parties at length.   Having heard the learned

3

counsel appearing on behalf of the respective parties, the findings

recorded  by the  High  Court and considering the evidence on

record, we are of the opinion that the impugned judgment and

order passed by the High Court, insofar as accused Kalicharan,

Amar  Singh,  Kedar, Abhilakh,  Ramgopal, Tejsingh,  Gangaram

and Vedari are concerned, is not required to be interfered with.

In the facts and circumstances of the case and considering the

fact that there was a  free fight  and  the role  attributed  to  the

aforesaid accused, the High Court has rightly acquitted the

aforesaid accused for the offences under Sections 148, 302/149

and 325/149 of the IPC.  The same is absolutely in consonance

with the decision of this Court in the case of Kanwarlal v. State

of M.P. (2002) 7 SCC 152.  Therefore, the present appeal qua the

aforesaid accused (except the accused­Ramavtar) deserves to be

dismissed.   

3. Now, so far as the impugned judgment and order passed by

the High Court altering the conviction of the accused­Ramavtar

from Sections 302/149 to Section 304 Part II of the IPC is

concerned, it is required to  be  noted that the fatal  blow was

caused  by the said accused­Ramavtar.   The  deceased  Kalyan

sustained the injury on his head which was caused by the

4

accused Ramavtar.   The said injury caused by the accused

Ramavtar was on the vital part of the body i.e. head and proved

to be fatal.   Merely because the accused Ramavtar caused the

injury on the head by the blunt side of Farsa, the High Court is

not justified in altering the conviction to Section 304 Part II of the

IPC.  As held by this Court in catena of decisions, even in a case

of a single blow, but on the vital part of the body, the case may

fall under Section 302 of the IPC and the accused can be held

guilty for the offence under Section 302 of the IPC.  However, in

the facts and circumstances of the case, more particularly that it

was a case of free  fight,  considering  the  fact that the weapon

used by the  accused Ramavtar  was Farsa and he  caused  the

injury on the vital part of the body i.e. head which proved to be

fatal, in the facts and circumstances of the case, we are of the

opinion that the  High  Court has committed a grave error in

altering the conviction of the accused Ramavtar from Sections

302/149 of the IPC to Section 304 Part II of the IPC.     In the

facts and circumstances of the case and considering the evidence

on record, more particularly, the medical evidence and the

manner in which the incident took place, we are of the opinion

that the accused Ramavtar should have been held guilty for the

5

offence under Section 304 Part I of the IPC.   To that extent, the

impugned judgment and order passed by the High Court deserves

to be quashed and set  aside.    The conviction of the accused

Ramavtar is to be altered from Section 304 Part II to Section 304

Part I of the IPC.

3.1 In view of the above and for the reasons stated above, the

present appeal succeeds in part.   The impugned judgment and

order passed by the High Court insofar as altering the conviction

of the accused Ramavtar from Sections 302/149 of the IPC to

Section 304 Part II of the IPC and sentencing him to undergo five

years R.I. with fine of Rs.5,000/­ for the offence under Section

304 Part  II  of the  IPC is  hereby quashed and set  aside.  The

conviction of the accused Ramavtar (respondent No. 2 herein) is

altered from Section 302 of the IPC to Section 304 Part I of the

IPC and is sentenced to undergo eight years R.I. with a fine of

Rs.5000/­ and in default to further undergo R.I. for six months.

Four weeks’ time is granted to the accused Ramavtar (respondent

No. 2 herein) to surrender to serve out the remaining portion of

his sentence.   Rest of the judgment and order of the High Court

is hereby confirmed.  

6

……………………………….J.    [M. R. SHAH]

NEW DELHI,    ……………………………….J. MAY 31, 2019.            [A.S. BOPANNA]