PRAKASH versus STATE OF MADHYA PRADESH

Citation: [2006] SUPP. 9 S.C.R. 907 · Decided: 01-12-2006 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed

Judgment (excerpt)

.. 
PRAKASH 
A 
v. 
STATE OF MADHYA PRADESH 
DECEMBER l, 2006 
B 
[S.B. SINHA AND MARKANDEY KA TJU, JJ.] 
Penal Code, 1860-s.304-II rlw s.34-Murder-Common intention -
Deceased unarmed-Chased by accused armed with lathis-As deceased was 
running, Appellant-accused gave lathi blow on his leg-Deceased fell down C 
whereafter 'B', a co-accused, assaulted him on the head which proved fatal-
Conviction of Appellant under s.304 Part-1 rlw 34-Justification of-Held, 
justified -Common intention on the part of Appellant is evident-Evidently 
lathi blow on leg was given to stop deceased from running -Deceased fell 
down, which facilitated 'B' to cause injuries on his person, including the fatal 
injwy on his head. 
D 
In a murder case, it was alleged by the prosecution that all the 
accused persons including Appellant armed with sticks (lathis) chased the 
deceased who was unarmed. As the deceased was running, Appellant gave 
a lathi blow on his leg on which he fell down whereafter a co-accused ('B') E 
assaulted the deceased on his head. This incident followed an earlier 
incident on the same day in which the deceased had allegedly assaulted 
'B' with lathi. 
Trial Court convicted Appellant, 'B' and another accused under 
Section 302/34 IPC. High Court altered the conviction of Appellant to that F 
under Section 304-11 r/w 34 IPC. 
In appeal to this Court the conviction of Appellant was challenged 
on the following grounds viz. 1) that the eye witnesses examined were not 
reliable; 2) that the ocular evidence was inconsistent with medical G 
evidence; 3) that there was inconsistency between opinions of the two 
doctors examined on behalf of the prosecution and 4) that in any case, 
the prosecution cannot be said to have proved common intention on the 
part of appellant to commit murder of the deceased. 
907 
H 
908 
SUPREME COURT REPORTS (2006] SUPP. 9 S.C.R. 
1' 
A 
Dismissing the appeal, the Court 
HELD: 1.1. PW-2 and PW-3 are witnesses to the second occurrence 
whereas PW-5 and PW-6 are witnesses to both the occurrences. Both the 
Sessions Judge as also the High Court have relied upon the evidence of 
B 
the eye-witnesses. There is no reason to differ with their opinion. (912-C-D) 
1.2. The deceased was a teacher. PWs-5 and 6 were categorical in 
their statements that in the first occurrence, the deceased had hit 'B' with 
stick twice. They were separated by some of the prosecution witnesses. At 
about 5 0' clock, when the witnesses were returning from the Hat, they 
c saw 'B' and three-four other persons chasing the deceased. The witnesses 
tried to pacify them. They ran to save him, but Appellant and 'B' jumped 
a hedge and came near the deceased. Appellant is said to have hit the 
deceased in his leg, whereafter 'B' had assaulted him on the head from 
behind. They thereafter fled away. PWs-2 and 3 also testified to the 
D 
aforementioned effect. (912-E-FJ 
2.1. The injuries received by the deceased on his head caused multiple 
fractures. The intensity with which he was hit is, thus, self-evident. Apart 
from the injury on head, he suffered injury upon the back on the left side of 
the shoulder. There was another injury in the middle of left shoulder. 
E 
[913-C-D) 
2.2. All the eye-witnesses categorically stated that the first assault was 
made by Appellant. Apparently, he might have done so to immobilize the 
deceased, whereupon assault on other parts of his body could have been 
inflicted. Absence of any injury on the leg is not of much significance. It is 
F 
also not much of significance that PW-17 (Doctor) found only one injury on 
the person of the deceased. He was brought to the Primary Health Centre on 
an emergency basis. The head injury was serious in nature. The doctor, 
therefore, must have given his entire attention only thereto. Only because 
the said witness in cross-examination stated that he must have examined all 
the injuries is not of much significance. Homicidal nature of death of the 
G deceased is not dispute. The place, time and date of occurrence is also not in 
dispute. The fact that PW-17 treated him at the Primary Health Centre is 
also not in dispute. Similarly, the contents of the post-mortem report are also 
not in dispute. One, thus, fails to understand as to how some difference in the 
medical opinions of PW-17 and PW-11 (Autopsy Surgeon) would help the 
H 
cause of Appellant. (913-D-G) 
f 
PRAKASH v. ST ATE OF MAD HY A PRADESH 
909 
3.1. Section 34 of the Indian Penal Code provides for a

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