- (1.) Leave granted.
(2.) Challenge in this appeal is to the judgment of a Division Bench of the Madhya Pradesh High Court at Jabalpur allowing the appeal filed by the State of M.P. upholding the appellant guilty for offence punishable under Section 304 Part I read with Section 34 of the Indian Penal Code, 1860 (in short the IPC ) and sentencing him to undergo imprisonment for 7 years. However, his acquittal for offences punishable under Sections 147, 148, 302 read with Section 149 IPC was upheld. Eight persons faced trial for alleged commission of offences. Gubdu and Ishwar A-1 and A-2 respectively were charged for commission of offences punishable under Sections 147, 148, 323, 149 and 302 IPC. Rest of the accused persons were charged under Sections 147, 148, 323 read with Section 149 and 302 read with Section 149 IPC. The trial Court recorded conviction and imposed sentences as follows: A-2 Ishwar was convicted under Section 302 and sentenced to undergo imprisonment for life and also to pay fine of Rs. 500/- and in default to further undergo simple imprisonment for one month. A-4 Komal was found guilty of the offence punishable under Section 323 IPC and was sentenced to pay fine of Rs. 500/- and in default to undergo simple imprisonment for one month but was acquitted of the other offences and the other six accused (A-1, A-3, A-5 to A-8) were acquitted of all the charges. Accused Ishwar preferred Criminal Appeal No. 978 of 1992 while the State of M.P. filed Criminal Appeal No. 245 of 1993 against the acquittal of seven accused persons.
(3.) Prosecution version in nutshell is as follows: All the accused are residents of village Doomar, where complainant Shrilal (PW7) father of Daulat (hereinafter referred to as the deceased ) also resided. He is a barber by profession. Although, he is generally engaged for the work of hair cutting, shaving etc., yet he also renders services as an assistant in marriages solemnized in accordance with traditional Hindu order. However, in view of dispute with Al, A3 & A4 as to payment of money for the services rendered, the complainant at the relevant point of time, was not serving as barber to these accused. In turn, they also called another barber namely Ishwar Das, the A2, from another village Purena. On the auspicious occasion of "Akshay Tritiya" that fell on 19th April, 1988, a number of marriages were proposed to be solemnized in village-Doomar. Shrilal (PW7) was working in the Pangat (community feast) at the residence of one Komal Kachhi. He had deputed his son deceased Daulat to render service in the marriage ceremony organized at the residence of one Balram Ahir. At about 3:00 p.m., when the guests were taking meals at the residence of Bairam, Al called Daulat through Narayan Singh to a place near Mata ki Madiya (place of worship of the Goddess). Al and A2 gave Kharerua (piece of wood used in bullock cart) blows on Daulat s head. He fell down and was rendered unconscious. His younger brother Harlal (PW8) immediately went to the house of Komal Kachhi and informed his father Shrilal (PW7) about the incident. Shri and his wife Phoolabai rushed to the spot, where he was also assaulted by Al and A2 with Kharerua. A3 & A4 wielded lathies on his wife Phoolabai and his younger son Harlal was also struck with lathies by A5 and A8. Parents and brothers of unconscious Daulat immediately took him to the police station, where Shrilal lodged the first information report (Ex-P/7) Thereupon, a case under Sections 294, 341 & 323 read with Section 34 IPC was registered. Daulat and other injured namely, Shrilal, Phoolabai and Harlal were sent to the PHC Bankhedi for medical examination. Dr. R.C. Agrawal (PWI5), after examining Daulat, referred him to the District hospital, Hoshangabad for admission and treatment and also advised radiological examination of the injury found on the scalp. Pursuant to his advice, Daulat was taken to the District Hospital at Hoshangabad where he succumbed to the injuries on 20.4.1988. After inquest proceeding, the dead body of Daulat was sent for post mortem that was conducted by Dr. Ashok Kumar Tiwari (PW14). During investigation, the accused were arrested and at their instance respective weapons were recovered. One white shirt worn by the deceased at the time of incident was also recovered and seized. All these articles were sent to the FSL, Sager, along with the ordinary and blood stained soil seized from the spot for chemical examination. Observing bloodstains on all these articles excepting the ordinary earth seized from the spot, the Chemical Examiner forwarded the exhibits to Serologist for further examination. However, the Serologist could only determine presence of human blood on the shirt and the blood stained earth seized from the spot. The trial Court as noted above convicted A-2 Ishwar and A-4 the present appellant for offence punishable under Sections 302 and 323 IPC respectively for their individual acts and sentenced them as indicated above. No appeal was filed by A-4 Komal against his conviction. Appeal was filed by State before High Court. According to the stand of State before the High Court, the true parameters of Section 149 IPC were not kept in view. The High Court accepted the stand and directed conviction as noted above.;