Madhya Pradesh High Court
Laxmi Prasad Vaishya vs The State Of Madhya Pradesh on 18 March, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 18 th OF MARCH, 2025
CRIMINAL APPEAL No. 13221 of 2024
LAXMI PRASAD VAISHYA AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Mr. Surendra Singh - Senior Advocate with Mr. Pushpendra Kumar
Vaishya - Advocate for appellants.
Mr. Ajay Tamrkar - Government Advocate for State.
JUDGMENT
Per: Justice Devnarayan Mishra
This appeal has been preferred being aggrieved with the judgment dated
21.11.2024 passed by Fifth Additional Sessions Judge, Headquarter-Waidhan,
District-Singrauli in S.T. No.138 of 2015 by which the appellants have been
convicted for the offence punishable under Section 148 of the Indian Penal Code
and sentenced to suffer R.I. for 03 years with fine of Rs.2,000/-, under Section
323/149 (on two counts) of the Indian Penal Code and sentenced to suffer R.I. for
01 year with fine of Rs.1,000/- (on each count) and under Section 302/149 of the
Indian Penal Code and sentenced to suffer Life Imprisonment with fine of
Rs.6,000/- each with default stipulations respectively.
2. In nutshell the prosecution case before the trial Court was that on
05.05.2015 at about 09:00 am, the appellants were cutting the Palas tree standing
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on the field of victim party. The injured Rambahore (PW-1) and deceased
Devpratap objected, on that the appellants Gorelal, Motilal, Ramdayal who were
having axe and Bhagwan Das, Prabhakar and Laxmi were having lathi with the
common object of unlawful assembly started beating the victim party. Motilal
assaulted Rambahore with blow of an axe and after that Ramdayal, Gorelal
assaulted him by the handle of axe and when deceased Dev Pratap tried to rescue
his father, appellants Bhagwan Das, Prabhakar and Laxmi Prasad started
assaulting his son with lathis and Laxmi Prasad Vaishya assaulted the victim and
deceased Dev Pratap by tangi. The deceased became unconscious and fell down
on the ground and Rajkumari (P.W-5) reached on the spot, appellant Motilal
assaulted her by stone. The victim by dialing 108 called ambulance. The injured
and the deceased were brought to District Hospital, Waidhan during treatment,
deceased Dev Pratap died. F.I.R was lodged at Police Station-Mada, District-
Singrauli for the offence punishable under Sections 147, 148, 149, 302 & 323 of
the Indian Penal Code. Dead body was sent for autopsy. Appellants were arrested
and from their possession weapon of assault were recovered. After usual
investigation, charge-sheet was submitted and sent to the trial Court.
3. Trial Court framed the charges under Sections 148, 323/149 (on two
counts), 302 and in alternate 302/149 of the Indian Penal Code read over to the
appellants. The appellants abjured the guilt and prayed for trial. The trial Court
recorded the prosecution evidence and examined the appellants under Section 313
of the Code of Criminal Procedure.
4. The appellants had taken defence that they have falsely been implicated
in the case. The deceased and his parents were themselves assailants and they had
caused the injuries. They had assaulted the appellants and the counter case was
registered. They were medically examined. The point of the dispute was Palas tree
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that was standing in the field of appellants but the deceased and his father wanted
to forcibly cut the Palas tree and wanted to take the wood of the tree for their use.
Appellants were already present and cutting the tree. Appellants themselves had
suffered the injuries when to save themselves they assaulted the victim. The injury
suffered by Rambahore (PW-1) is simple in nature and the quarrel suddenly took
place. There was no intention on the part of the appellants. The trial Court after
hearing the parties passed the impugned judgment.
5. Learned senior counsel for the appellants has submitted that the trial
Court without due appreciation of the evidence convicted all the appellants. From
the site map (Exhibit-P/23) that was prepared by the Halka Patwari and the
revenue papers submitted by Pawan Kumar Shah (PW-7), the incident happened
in the agricultural land, survey numbers 582 and 1336 and as per the exhibit-P/23,
the Palas tree was in survey no.582 was of the ownership of Ajay Kumar and
Kamlesh Kumar and on that basis, it is submitted that as per paragraph no.8 of
cross-examination of Rambahore, who has submitted that his brother Shankar had
sold the part of survey number 582 to the sons of Ram Kaya Vaishya and their
names are Ajay Kumar and Kamlesh Kumar Vaishya and Ajay Kumar and
Kamlesh Kumar are having possession over that part and on that basis, he
submitted that the appellants were cutting the tree that was in their possession and
the deceased and complainant (PW-1) were having no right.
6. The complainant (PW-1) and his son went on the spot and made quarrel
and the deceased was assaulting with an axe to the appellants party, they also
suffered the injuries. The complainant (PW-1) by his omnibus statement has
alleged that all the accused persons had assaulted him and his son whereas
Rambahore has suffered a single injury over his forehead measuring 4cm x 2cm
and one injury of the abrasion in the right hand, another abrasion in the right knee
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and all the injuries were simple in nature. No visible injury was found on the body
of Rajkumari (PW-5) and also submitted that as per the postmortem report, proved
by Dr. Ritu Patel (PW-2) only two injuries were found on the person of the
deceased Dev Pratap, one stitch measuring 2 cm above the right eye-brow and
another in the occipital region measuring 7 cm x 0.7 cm x 0.7 cm and deceased
died due to fracture on the head. No injury was repeated, hence no case of murder
is made out.
7. Learned counsel for the appellants has also submitted that in the cross-
case, appellant Motilal suffered grievous injury and cross-case was registered
against the victim party. Thus, by the separate trial, the victim party has been
acquitted and submitted that they have proved the injuries suffered by Motilal and
others by submitting the document of MLC and statement of Investigating Officer
A.K. Agnihotri (PW-17), maximum there was a free fight, no common object or
intention is proved. Thus, no offence is proved against the appellants and
submitted that the appellants be acquitted from all the charges.
8. Learned counsel for the appellant has relied on the judgment of Kalabai
Vs. State of M.P., AIR 2019 SC 2135 in which, it is held by the Supreme Court
that when in sudden quarrel death occurred, there being no intention to murder the
accused could not be convicted for murder punishable under Section 302 of Indian
Penal Code but accused will be liable to be convicted for the offence punishable
under Section 304 (Part-II) of the Indian Penal Code.
9. On relying the judgment of Apex Court in the case of Uggarsain Vs.
State of Haryana and Ors. (2023) 8 SCC 109, learned counsel for the appellant has
submitted that in case when the appellants are convicted for offence punishable
under Sections 304 Part-II/149, 323/149 and 148 of the Indian Penal Code when
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the role of each accused is indistinguishable and distinguishable feature is not
found, sentence of five years R.I. will be appropriate.
10. Mr. Ajay Tamrakar, learned counsel appearing on behalf of the State
has submitted that the trial Court has well considered the evidence available on the
record and formed the MLC as submitted by the defence before the trial Court, it
is proved beyond reasonable doubt that the appellants Motilal, Bhagwandas and
Laxmi Prasad were present on the spot and were assailant. The victim and his son
suffered the injuries and Dev Pratap died just after the incident. The appellants
were forcibly cutting the tree that was in the possession of the victim party. The
trial Court has properly considered the fact. Hence, no case for interference is
made out.
11. Heard the parties and perused the record.
12. Firstly, as per the post-mortem report proved by Dr. Ritu Patel (PW-2),
who conducted the autopsy over the dead body on 05.05.2015 on the day of the
incident has submitted that, she examined the dead body, she found that the blood
was coming out from mouth and nose of the deceased. There was a stitched
wound of 2 cm in length above the left eye-brow (though in the statement stated
that in right eye-brow) and lacerated wound measuring 7 x .7 x .7 cm on occipital
region, bleeding, fracture was found and deceased died due to shock and
hematoma due to head injury.
13. Thus, it is clear that the victim suffered two injuries, one over the left
eye-brow and another on the occipital region of the head.
14. On the same day, the victim Rambahore Yadav (PW-1) as per Rahul
Pathak (PW-8) suffered a lacerated wound in the forehead that was of 4 x 2 cm,
the abrasion in the right hand and left knee. No external injury was found on the
body of Rajkumari Yadav (PW-5). Thus, Rambahore Yadav suffered one open
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injury and the deceased suffered two injuries and Rajkumari (PW-5) suffered no
external injury.
15. On the point who caused the injuries, Rambahore Yadav stated that on
05.05.2015, the appellants were cutting the Palas tree that was standing in his field
and when he objected, all the accused persons assaulted him, they were assaulting
with the axe/tangi by that he suffered grievous head injuries and fell down when
they saw Devpratap was also present there, all the accused persons also assaulted
him by tangi/axe, by that he suffered grievous injury and on spot, he became
unconscious, accused persons also assaulted his wife Rajkumari and dragged her
by holding her hairs. Babua Singh reached there, he called the ambulance and
reached at the Waidhan Hospital. Deceased died at 01:00 pm. Autopsy was
conducted over the dead body of the deceased, he lodged an F.I.R.
16. In the cross-examination, this witness has stated that Laxmi Prasad
Vaishya assaulted him with tangi. Motilal also assaulted with tangi and denied the
suggestion that deceased Dev Pratap was himself assaulting the accused persons
by tangi and by that, part of tangi, fell on his head and he suffered the injuries and
also stated that he became unconscious so he could not tell who had assaulted Dev
Pratap by his weapon. In paragraph no.16 of his cross-examination, he stated that
he could not tell that Motilal Vaishya had assaulted his wife by a single stone. In
paragraph no.20 of the cross-examination, he had not denied the suggestion that
deceased Dev Pratap had assaulted Motilal by an axe and Motilal had suffered
grievous injury, he could not explain to that and also denied the suggestion that as
a right to private defence, Motilal after snatching the tangi from Dev Pratap
assaulted the deceased and Dev Pratap suffered the injury.
17. Thus, this witness is making omnibus statement regarding the act of all
the accused persons but from the cross-examination, it is clear that Motilal had
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assaulted this witness Rambahore as well as his son Dev Pratap and Motilal had
assaulted witness by stone. Rajkumari Yadav (PW-5) in her chief examination has
stated that Laxmi Prasad, Bhagwan Das and Motilal started assaulting his husband
and Dev Pratap and these persons had assaulted them to make them fell down. In
paragraph no.11 of her cross-examination, she has suggested that Laxmi Prasad by
tangi, assaulted his son two times. The witness Basant Singh Marawi (PW-6) has
stated that on 05.05.2015 at 09:10 am, the accused persons had assaulted the
injured Rambahore and deceased with the tangi and lathi.
18. By the cross-examination of A.K. Agnihotri (PW-17), in paragraph
no.21, it has been brought on record that the deceased suffered only two or three
injuries. In paragraph no.32, this witness has admitted that when he arrested
Motilal, he found injuries on the body of Motilal and in the left shoulder, there
were injuries and Bhagwandas also suffered the injuries and stated that the main
cause of the dispute was the Palas tree.
19. In the light of the above evidence, the statements of the deceased and if
the documents of treatment are taken into consideration, it is clear that Motilal,
Bhagwan Das and Laxmi Prasad were present on the spot as they themselves
suffered the injuries and lodged the F.I.R.
20. From the spot map prepared by the Investigating Officer (Exhibit-P/2)
and recovery made from the spot as per (Exhibit-P/3) proved by A.K. Agnihotri
(PW-17), a broken part of the bat of axe was recovered from the spot and as per
Exhibit-P/16 an axe whose bat was broken, has been recovered from the
possession of appellant Laxmi Prasad Vaishya. As per (Exhibit-P/17) and as per
F.S.L. report (Exhibit-P/31), blood stains were found. A piece of bat that was
recovered from the spot, blood stains were also found from the tangi, recovered
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from the possession of Laxmi Prasad and lathi recovered from Prabhakar.
21. In the light of the above, it is clear that Laxmi Prasad was actively
involved in the offence. The act of Laxmi Prasad is clear. In the same way, the
active participation of Motilal is also proved and as per prosecution evidence as he
had suffered the grievous injuries in the same incident, that may be attributed due
to act of the deceased and the lathi was recovered from the possession of
Prabhakar and from the injury suffered by Bhagwan Das, his active involvement
is proved whereas, the active participation of Ramdayal and Gorelal is not proved.
Thus, it is clear that active participation of these four persons i.e. Laxmi Prasad,
Motilal, Prabhakar and Bhagwan Das is proved.
22. The defence of the appellants are that they were cutting the Palas tree
that was in their field and from the paragraph no.8 of the statement of Rambahore
and Pawan Kumar Shah (PW-7), it is also clear that the Palas Tree was standing
on the land that was purchased by the appellants from the brother of Rambahore
i.e. Shankar and they were cutting that tree but it cannot be said that they have not
exceeded the right to private defence, it may also be that actually, they had
purchased the land but the victim party was having possession over the tree as it is
not unusual in the rural areas that the person who maintained the tree claims the
ownership.
23. Motilal who had suffered the grievous injuries as per the medical record
submitted in the defence and prosecution has not explained in what
circumstances, the appellants suffered the injury.
24. Learned senior counsel for the appellants has also submitted that a
single injury was caused to Rambahore (PW-1) and to Rajkumari (PW-5) only
one injury was caused in the back that became fatal and the four persons were
involved but the assault was not repeated. Thus, it is clear that whereby no
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intention of the appellants to murder the deceased Dev Pratap, in sudden quarrel
when the appellants were cutting the tree and were present on the spot. Quarrel
had taken place and on that the injury was caused to the deceased to prevent him
from assaulting the appellants party, no case of murder is made.
25. We also considered on this point.
26. It is clear that no external injury was found on the body of Rajkumari
(PW-5) and single blow was used on Rambahore (PW-1) and deceased Dev Pratap
suffered injuries above the eye-brow and occipital region and that were also not
caused by the sharp side of the axe/tangi and assault was not repeated. It is clear
that the appellants were not having intention to kill the deceased, hence, the act of
the appellants does not come under the purview of definition clause of murder as
defined under Section 300 of the Indian Penal Code. Injuries suffered by rest of
the victim are simple in nature and active participation of the four person is
proved.
27. The trial Court has framed the charges for the offence punishable under
Sections 148 and 149 of the Indian Penal Code but as the offence is proved only
against the four persons. For Section 148 of the Indian Penal Code as to constitute
unlawful assembly, so that minimum five persons are required, hence the
appellants cannot be convicted with the help of Section 149 of Indian Penal Code
but in the charge under Section 149 of the Indian Penal Code has been framed, no
separate charge to convicting the appellants with the help of 34 of the Indian Penal
Code is not necessary.
28. Thus, after the above discussions, all the appellants are acquitted from
the offence punishable under Sections 148 and 302/149 of the Indian Penal Code
and the appellants namely Gorelal and Ramdayal are acquitted from all the
charges.
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29. Rest of the appellants i.e. Laxmi Prasad Vaishya, Bhagwandas Vaishya,
Motilal Vaishya and Prabhakar Vaishya are convicted for the offence punishable
under Sections 323 read with 34 for assaulting Rambahore (PW-1) and Rajkumari
(PW-5) (on two counts) and each of them is punished for R.I. of one year with fine
amount of Rs.1,000/- for each count as imposed by the trial Court and the above
appellants are also convicted for the offence punishable under Section 304 (Part-
II) read with Section 34 of the Indian Penal Code and sentenced to suffer R.I. of
08 years with fine amount of Rs.6,000/-.
30. The appellants Ramdayal and Gorelal be released forthwith, if not
required, in any other case.
31. With the above modification, the appeal regarding Laxmiprasad,
Bhagwan Das, Motilal and Prabhar is partly allowed and for the two appellants i.e.
Ramdayal and Gorelal, it is fully allowed.
32. Let the supersession warrant be prepared and sent to the concerned jail
authorities.
33. The order of the trial Court regarding case property is affirmed.
34. With the copy of judgment, the record of the trial Court be returned
back.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
julie
