GOPALversusSTATE OF MADHYA PRADESH

                      [2011) 6 S.C.R. 889

                             GO PAL                                 A
                                v.
               STATE OF MADHYA PRADESH
             (Criminal Appeal No. 1710 of 2007)
                         MAY 19, 2011
                                                                    B
  [ASOK KUMAR GANGULY AND DEEPAK VERMA, JJ.]

       Penal Code, 1860: s.304 (Part I) and s.324 - Five
  accused - Appellant-accused inflicted knife blow on the
  victim resulting in his death - Other accused persons inflicted   c
  sword blows and blow by cycle chain on the complainant party
  - Trial court held appellant guilty for commission of offences
  u/ss. 148, 302, 3231149, /PC, and other accused persons ul
  ss. 148, 3021149, 323 - High Court found appellant guilty ul
  s.304 (Part I) and sentenced him to unde'rgo rigorous             D
  imprisonment for 10 years while other accused were found
. guilty only u/s.324 - Both appellant and State challenged the
 judgment of High Court - Held: Conviction of appellant-
  accused uls. 304 (Part I) upheld, however, in order to meet the
  ends of justice, his sentence reduced to period already           E
  undergone which was more than 6 years - Conviction of the
  other accused uls.324 upheld in view of the fact that medical
  evidence showed that injuries sustained by the complainant
  party were simple in nature and, further, injuries sustained by
  the accused were not explained by the prosecution.
                                                                    F
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
 No. 1710 of 2007.
    From the Judgment & Order dated 19.10.2005 of the High
Court of Madhya Pradesh, Indore Bench, Indore in Crl. A. No.
328 of 1995                                                         G
                              WITH
Crl. A.No. 1711of2007.

                              889                                   H
        890      SUPREME COURT REPORTS                [2011) 6 S.C.R.

A            S.K. Dubey, Subhash Kaushik, Malini Poduval, Praveena
        Gautam, C.D. Singh, Vikas Bansal, Vibha Datta Makhija,
        Vartika Sahay, Malini Poduval for the Appellant.
              The following Order of the Court was delivered
B                                 ORDER
       1. 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
C of 1995, preferred by accused Gopal and Criminal Appeal No.
  429of1998 preferred by accused Shankarlal, Nandlal, Dinesh
  and Chhote@ Chhotalal decided on 19.10.2005.
           2. Five accused were charged and prosecuted for ·
    D 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 pronounced the judgment on
      31.3.1995, holding the accused Gopal guilty for commission of
      offences under Sections 148, 302,323/149 IPC, accused
    E 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.
    F        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
1
    G 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
    H undergone by them with fine of Rs. 200/- each. The accused
       GOPAL v. STATE OF M~DHYA PRADESH                        891

Dinesh was not found guilty for any of the offences and was,           A
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             B
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.
                                                                       c
     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
                                                                       0
challenge that accused Gopal should have been convicted
und~r 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,             E
a panchayat, meeting was also convened by Ramchandra
wherein Shankarlal was present but, due to some reason, the
meeting ~uld not be held. Thereafter, on the same day, when
Tulsiram, Ramchandra, Mitthulal and Shantiial were passing
from the house ·of Shankarlal, accused Gopal abused them and           F
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,          G
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               H
    892     SUPREME COURT REPORTS                [2011] 6 S.C.R


A report lodged by Tulsi Ram. Police prepared spot map and
  arrested 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.
B       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
C 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
D 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
E 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.
F      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 found them guilty for the offences as mentioned
G 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,
H whereas other accused namely; Shankarlal, Nandlal and
      GOPAL v. STATE OF MADHYA PRADESH                       893


Chhotelal have been found guilty only under Section 324 IPC         A
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       B
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    c
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      D
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              E
complainant party was aggressor.
     16. On the other hand, Mr. S.K. Dubey, learned senior
counsel 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            F
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      G
other accused persons could not have been convicted only
under Section 324 IPC, whereas the injuries gustained 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.
                                                                    H
    894     SUPREME COURT REPORTS                [2011] 6 S.C.R.

A      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
B 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
C 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 were simple in nature. This aspect of the
D 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
E 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
F 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
G 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.
    D.G.                                      Appeal dismissed.
H