Full Judgment Text
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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
Signature Not Verified
Digitally signed by
DEEPAK SINGH
Date: 2019.05.31
16:31:22 IST
Reason:
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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
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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
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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
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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.
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……………………………….J.
[M. R. SHAH]
NEW DELHI, ……………………………….J.
MAY 31, 2019. [A.S. BOPANNA]